Citation: Wong v. Wong Date: 19990601 1999 BCCA 344 Docket: CA023244 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: STEPHANIE TIEN HOA WONG, a.k.a. STEPHANIE WONG PLAINTIFF (RESPONDENT) AND: KIT WONG, a.k.a. NGUU HUYNH and 356406 BRITISH COLUMBIA LTD. DEFENDANTS (APPELLANTS) Before: The Honourable Mr. Justice Goldie The Honourable Madam Justice Rowles The Honourable Madam Justice Newbury Michael G. Mahoney Counsel for the Appellants Michael P. Carroll, Q.C. and Catherine J. Branch Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia May 6, 1999 Place and Date of Judgment Vancouver, British Columbia June 1, 1999 Written Reasons by: The Honourable Madam Justice Rowles Concurred in by: The Honourable Mr. Justice Goldie The Honourable Madam Justice Newbury Reasons for Judgment of the Honourable Madam Justice Rowles: I. Introduction [1] After going through a traditional Chinese marriage ceremony, the parties, who are both Vietnamese by birth, lived together for 13 years. When their relationship ended, they had assets exceeding four million dollars. The assets consisted of three apartment buildings, all of the issued shares in four privately-held corporations, and the former family home. [2] Mrs. Wong brought an action in which she claimed to be entitled to a 50% interest in each of the assets, either by way of resulting or constructive trust. In his counterclaim, Mr. Wong sought a declaration that Mrs. Wong held in trust on his behalf those assets which were registered in her name. Mrs. Wong was successful in her action and Mr. Wong's counterclaim was dismissed. The trial judge's reasons for judgment dated 28 April 1997 are reported at [1997] B.C.J. No. 981 (Q.L.) (B.C.S.C.). [3] During argument at trial, Mr. Wong's counsel conceded that Mrs. Wong's claim for a constructive trust had been made out, and that the only issue remaining was the extent of the plaintiff's interest in the assets. In his reasons, the trial judge noted that the parties had asked him to determine only "the extent of the plaintiff's `global' interest in the assets, and to leave it to them and their advisers to work out the mechanics of any division and distribution that must follow". [4] The formal order reads, in part: THIS COURT ORDERS that a declaration be made that the Plaintiff is entitled to a 50% interest in the assets at issue being: 1. The property located at 1123 Burnaby Street, Vancouver, British Columbia; 2. The property located at 1131 Burnaby Street, Vancouver, British Columbia; 3. The property located at 1151 Haro Street, Vancouver, British Columbia; 4. All of the issued shares of 356406 B.C. Ltd. 5. All of the issued shares of BT Apartments Ltd. 6. All of the issued shares of East-Sea Trading Ltd. 7. All of the issued shares of Five Oceans Enterprises Ltd.; and 8. The property located at 4602 West 4th Avenue, Vancouver, British Columbia. * * * THIS COURT FURTHER ORDERS that an alleged debt of approximately $380,000.00 to Korea Dysong [sic] Trading Corp. shall not be included in any valuation of the shares of Five Oceans Enterprises Ltd. [5] Orders made with reference to the children and their support are not in issue on this appeal. [6] Subsequent to the judgment, the parties tried to reach an agreement on a method of dividing their assets with a view to minimizing the tax implications but their efforts failed. Mrs. Wong then filed a petition under the Partition of Property Act, R.S.B.C. 1996, c. 347, in which she sought an order for sale of certain of the properties. We were informed by counsel that the parties subsequently appeared before the trial judge for the purpose of obtaining orders or directions on the sale or other disposition of the various assets, taking into account as well tax and distribution costs. In reasons for judgment issued 19 November 1998, the trial judge made various orders relating to the realization of Mrs. Wong's interest in the assets. No appeal has been taken from the orders made in the Partition of Property Act action. [7] The following grounds of appeal are set out in Mr Wong's factum: [The trial judge erred in finding:] 1. ... that the Respondent is entitled to 50% of the assets in question whether by way of resulting or equitable trust. 2. ... a common intention sufficient to support the existence of a resulting trust. 3. ... that a monetary award to the Respondent would be insufficient. 4. ... that the debt owed by Five Oceans to Korea Daesong Trading Corporation has been extinguished by the passage of time. [8] Although the third ground of appeal was not pursued in oral argument, counsel for the appellant submitted, as he did in his factum, that this Court should "impose a judgment on the Parties pursuant to Section 9(1)(a) of the Court of Appeal Act". [9] The appellant's main argument is that the order declaring Mrs. Wong to be entitled to a 50% interest in the various assets does not fairly reflect the parties' respective contributions to the acquisition of the assets. The following paragraphs in the appellant's factum set out his argument in that regard: 9. The evidence was clear that the Appellant was the one who started and ran the mushroom and ginseng businesses. It was also clear that he provided the seed capital for the businesses and worked very hard at making the enterprises succeed. 10. Similarly with the real estate dealings, the Appellant found all of the properties, negotiated the prices and arranged the financing. He made all of the decisions as to when to buy and when to sell. He arranged all of the financing and managed the apartment buildings. 11. The Respondent's sole contribution throughout the relationship was providing some child care, some household tasks and by contributing some of her income to family and household expenses. She did not contribute anything integral to either the import/ export and real estate businesses. 12. The Respondent was paid for any work she did either for Five Oceans or East Seas. II. Background [10] The appellant, who was born in 1944, worked as an interpreter for the United States Army during the Vietnam War. He had to flee when Saigon fell in April 1975 and left behind a wife and child. Mr. Wong, who was then known by his birth name, Nguu Huynh, kept in touch with his wife until sometime in 1976, but since then he has heard nothing from or about them. The trial judge said it seemed likely that they both had drowned while attempting to escape from Vietnam. [11] After arriving in Canada in 1975, the appellant worked as a janitor at a yacht club in Vancouver. In early 1976, he moved to Edmonton where he worked full-time at the Gainers meat plant until 1978. In 1978, he returned to Vancouver. After working for a year with a company which exported wild mushrooms, he incorporated Five Oceans Enterprises Ltd. and set up his own mushroom exporting business using his savings and the return on investments he had made. [12] It was not long after the appellant had started the mushroom exporting business that the parties met and their relationship began. [13] The respondent emigrated with her family to Canada in April 1979. She was then 15 years of age. The parties met shortly thereafter. Although there was a considerable difference in their ages, he then being 34, they began dating and a sexual relationship developed. [14] In April or May of 1980, the respondent's mother, Mrs. Thai, received a note from the appellant in which he asked permission to marry the respondent. He said that if he were allowed to marry the respondent, he would look after her and her family. Mrs. Thai testified that, because she felt that her daughter was too young for him, she did not even reply to his note. [15] In the spring or summer of 1980, the respondent discovered that she was pregnant with the appellant's child. With knowledge of the pregnancy, Mrs. Thai agreed to the marriage. [16] The respondent and her family gave evidence about the parties going through a traditional Chinese wedding ceremony that took place in late September 1980. Although Mr. Wong denied participating in any such event, the trial judge preferred the evidence of the respondent and her family to that given by the appellant. [17] After the marriage ceremony, the respondent went to live with the appellant in his apartment. The trial judge found that once there, "she did everything that (in her words) `a wife should do', including cooking, doing the laundry and cleaning the house". [18] The following paragraph from the trial judge's reasons sets out the appellant's financial position around the time the parties began to live together: [44] The August 31, 1980 balance sheet of Five Oceans Enterprises Ltd. shows that it then owned fixed assets worth approximately $11,000. The defendant's other assets consisted of a 1978 automobile and the second house in Edmonton, which he sold in 1981, realizing a profit of about $12,000. All told, his net financial worth at that time was approximately $25,000. [19] The parties' first child, Kim, was born on 22 January 1981. [20] The respondent left high school because of her pregnancy at Christmas, 1980. As her parents were anxious that she return to school, it was agreed that, in order to save money, the parties and the respondent's parents and two sisters would live together for a time. They all moved into a three bedroom basement suite the appellant had located and they shared the rent. [21] The respondent worked, full-time, at a restaurant. Her wages and tips went to buy food for the appellant, herself and their child. Sometimes, when the appellant could not manage it, she paid their share of the rent from the monies she had earned. [22] Mrs. Wong returned to school in September 1981, to finish Grade 12. While doing so, she continued working at a restaurant on a part-time basis and, as before, the money she earned was used to buy food and sometimes to pay rent. [23] Sharing accommodation was not a happy arrangement and, after about a year, the respondent's parents and sisters moved to another apartment. Because the respondent was attending school, they took Kim with them, but every day after school, and before going home to cook the appellant's dinner and do the housework, the respondent went to her parent's apartment to help them out and to cook for Kim. [24] After completing Grade 12, the respondent obtained a student loan and went to Langara College where she took the first year of a General Science programme. Between 1983 and 1985, she attended the British Columbia Institute of Technology as a full-time student. She took courses in food processing and quality control and qualified as a lab technician. [25] While at Langara and B.C.I.T., the respondent followed the same pattern of going to her parent's apartment and preparing Kim's supper. The appellant would then pick her up and she would go home with him and cook his dinner. Kim stayed with them on the weekends. [26] During those years, the respondent used part of the monies obtained through student loans to buy food for Kim. [27] After graduating from B.C.I.T., the respondent worked for a time as a lab technician at Ocean Fisheries. From the income she earned, she repaid her student loans and the balance went to buy food and to pay for other household expenses. [28] The parties continued to live in the basement suite they had shared with the respondent's family until 1983, when the appellant bought a home for them on Willard Avenue in Burnaby. He paid approximately $109,000, using mainly borrowed funds, and title was taken in his name alone. [29] Mr. Wong's wild mushroom business was developed in the early 1980s. In 1983, he also took up the ginseng business. With regard to those enterprises, including Mrs. Wong's involvement in them, the trial judge said: [45] Between 1980 and 1983, the defendant concentrated on developing the business of shipping mushrooms to Japan and Europe. He hired and trained people to pick the mushrooms. He then went around the province to gather up the mushrooms and bring them back to Vancouver for processing. [46] While he retained ownership of all of the issued shares in the capital of Five Oceans, he appointed the plaintiff as a director. In or about 1984, she began working for the company as a receptionist/ secretary and between then and 1993, she received remuneration amounting in total to approximately $70,000. To a large extent this was a tax-splitting arrangement and she used most of that money to buy food for the family and pay other household expenses. [47] In 1983, the defendant became involved in the ginseng business. It had been his intention to collect mushrooms in North Korea and China and export them but, when he went to North Korea to investigate the idea, he learned that there would be serious difficulties. However, he also learned about the ginseng business and he was able to negotiate with the North Korean Government, which controlled the sale and export of ginseng, an exclusive agency for the sale of the product in North America. [48] At first, Five Oceans Enterprises Ltd. imported the ginseng roots and other ginseng products. Then, Mr. Wong set up a new company, East-Sea Trading Ltd., for that purpose. Upon its incorporation, the issued shares were divided equally between the parties and both became directors. [49] Mr. Wong had intended to distribute these products throughout North America but, after learning that a Hong Kong company was already doing that, he began exporting them to Hong Kong. [50] Mr. Wong's initial agreement with the North Korean Government required him to provide a letter of credit. But, in 1985 or 1986, that seems to have changed to a consignment arrangement whereby East-Sea would pay for the goods only when they were sold. [51] East-Sea stopped importing ginseng products in 1988. Apparently, two shipments received by East-Sea in late 1986 were of low quality, but they were all sold. When asked why he stopped importing the products, Mr. Wong said that it was because he owed money to the Korean export agency. He insisted that, notwithstanding the export agency's request that he continue to accept ginseng products on consignment, as an Oriental person, he cannot do so, with good face, until the debt is paid. [30] In relation to the alleged debt of $380,000 which Mr. Wong claimed was owed to the North Korean trading corporation, the learned trial judge said: [52] Mr. Wong claims that he still owes Korea Daesong Trading Corporation, the North Korean export agency, the sum of approximately $380,000 CAN. The alleged "debt", which is recorded on the books of Five Oceans Enterprises Ltd., seemingly arose in 1987. According to Mr. Wong, it came about when he was able to make only partial payments on 3 shipments of ginseng products received in February, September and October of that year. [53] Mr. Wong claims that he met with officials of Korea Daesong in Singapore in 1992 to discuss the debt. He says that he told them that he could not pay it at that time because all of his capital was then "tied up" in real estate, but that he would pay them when property was sold. He says that they accepted that arrangement. [54] Filed as Exhibit 9 is a collection of several documents relating to the alleged debt, including a memorandum which Mr. Wong says was prepared and signed on behalf of Korea Daesong Trading Corporation in August of 1985, confirming the amount owing and an agreement that he will pay interest at 10% per annum from August 24, 1995 until payment in full. Another of the documents in that collection is a "Promise Note" signed by Mr. Wong confirming his agreement to pay interest at that rate. [55] I find myself unable to accept Mr. Wong's testimony as to the validity of this so-called debt. Under cross-examination, he was obliged to acknowledge that in his dealings with Daesong he was less than honest, having falsely represented to them that Five Oceans had an office in Los Angeles and that its president was someone other than himself. His admission that he had made those misrepresenta- tions in order to impress the Korean authorities and to give himself some leeway when negotiating with them, did nothing to instill in me any confidence in the worth of his testimony. Any doubts I might have had on that score were settled by his admission that when, on another occasion, he wrote to Daesong advising them that some customers had returned a shipment of ginseng because of its poor quality, he was not telling them the truth. [56] In short, Mr. Wong was not a credible witness. [57] It must also be noted that by his own evidence the last part of the so-called debt became statute- barred in February 1994, well before the written agreement and "Promise Note" were signed. Under our laws, the total amount of the debt has been extin- guished. No evidence was led as to the enforce- ability of the claim under the laws of North Korea. [58] Mr. Wong says that he is one of the few North Americans who has been able to develop a personal relationship with the late President of North Korea, Kim Sung, and his son, Kim Jong, the current President. He says that he fully intends to pay the debt because North Korea will be a big market in the future and he hopes to become a broker for all kinds of business dealings with that country. [59] While that may be the real reason for Mr. Wong's agreement to pay Korea Daesong Trading Corporation the sum of $380,000 plus interest, it is not a valid reason for taking that amount into account when determining the value of Five Oceans Enterprises Ltd. for the purposes of this case. To do so would be to unfairly penalize the plaintiff for what may in the future work to the defendant's sole advantage. [31] Beginning in 1986, Mr. Wong began to make real estate investments. As to how these investments were financed and how title was taken to them, the trial judge said: [60] Starting with the purchase of an apartment building at 1221 Burnaby Street, Vancouver, in May of 1986, Mr. Wong embarked upon a series of real estate investments. That property was bought for $770,000, of which $500,000 was secured by an Agreement for Sale. According to Mr. Wong, the cash payment of approximately $213,000 (after adjustments) came either from Five Oceans Enterprises Ltd. or was borrowed, in small amounts, from friends. Title was taken in the name of the plaintiff, then still using the name "Stephanie Thai". [61] 1221 Burnaby Street was sold in 1988 for $970,000 and the net proceeds invested in another property, 1151 Haro Street, title to which was taken in the defendant's name. Mr. Wong still owns that property. [62] Mr. Wong went on to buy and sell a number of other properties. In some cases, title was taken in the defendant's name, in others, in the name of the plaintiff, and in some cases, in both of their names, as joint tenants. In a few instances, title was placed in the name of a company, either 356406 British Columbia Ltd. or BT Apartments Ltd. The issued shares in the capital of both companies are registered 51% in the name of the defendant and 49% in the name of the plaintiff. [32] In 1987, the respondent had twins. Both were severely handicapped. One child died within two or three weeks, and the other child was given up for adoption. [33] The parties' last child, Daniel, was born in February 1990. [34] Not long after Daniel was born, both parties changed their names and that of their two children to Wong. [35] In 1991, the parties moved from their home on Willard Street in Burnaby to 4602 West 4th Avenue in Vancouver. The appellant paid $543,000 for the property, $381,000 of which was obtained by way of mortgage. Title was placed in Mr. Wong's name alone. The Willard Street property was rented for a time and then sold. [36] The parties separated on 4 February 1993, at which time Mrs. Wong left home with the children and moved in with her mother and one of her sisters. [37] The trial judge found that although the parties were never legally married, the respondent considered herself to be the appellant's wife. [38] The trial judge also found that Mrs. Wong was "at all times the person principally responsible for the care and upbringing of the remaining two children, albeit with the valuable assistance of her mother from time to time". [39] The trial judge noted that two defence witnesses who were employed by the appellant testified that they knew the respondent and that the appellant had introduced her to them as his wife. He also noted that the appellant claimed the "equivalent-to-spouse" tax credit on his 1994 tax return and that on his 1995 return, he claimed a deduction for maintenance. [40] As to the nature of the parties' relationship, the trial judge found: [22] On the evidence, I think it likely that the defendant refuses to acknowledge the "wedding" ceremony (just as he refused to go through a legal marriage ceremony) because he has had no official confirmation of his wife's death. But, having heard the witnesses testify, there is no doubt in my mind that the defendant was not telling the truth when he denied that the ceremony occurred. While it was not one that entitles the plaintiff to relief under the Divorce Act, 1985 or Part 3 of the Family Relations Act, I find that since the 28th day of September, 1980, she and the defendant have, to all intents and purposes, been man and wife. [41] The trial judge found that, as at the date of trial, the following assets were held in the names of one or both of the parties: a) 1123 Burnaby Street, Vancouver B.C., purchased in August 1992. Title is registered in the names of both parties. Its appraised value is $1,950,000. There is an outstanding mortgage balance of approximately $650,000, leaving an equity of approximately $1,300,000; b) 1131 Burnaby Street, Vancouver B.C., purchased in August 1991. Title is registered in the names of the defendant and a Mr. Kinny Chung. Its appraised value is $1,825,000. There is an outstanding mortgage balance of approximately $598,000, leaving an equity of approximately $1,227,000; c) 1151 Haro Street, Vancouver B.C., purchased in February 1988. Title is registered in Mr. Wong's name alone. Its appraised value is $1,750,000. There is an outstanding mortgage balance of approximately $705,000, leaving an equity of approximately $1,045,000; d) All of the issued shares in the capital of 356406 B.C. Ltd. That company owns two properties: 1. 1143 Haro Street, Vancouver B.C., purchased in May 1989, and 2. 1131 Haro Street, Vancouver B.C., purchased in March 1989. The estimated liquidated value of the company, assuming no disposal costs, is approximately $309,000; e) All of the issued shares in the capital of BT Apartments Ltd. having an estimated liquidated value, assuming no disposal costs, of approximately $152,000; f) All of the issued shares in the capital of East- Sea Trading Ltd. having an estimated liquidated value, assuming no disposal costs, of approximately $3,000; g) All of the issued shares in the capital of Five Oceans Enterprises Ltd. having an estimated liquidated value, assuming no disposal costs, and not taking into account the debt allegedly owing to Korea Daesong Trading Corporation, of approximately $616,700; and h) The final matrimonial home, 4602 West 4th Avenue, Vancouver, B.C. It is registered in the name of the defendant and has an assessed value of $764,200. There is an outstanding mortgage balance of $357,800, leaving an equity (assuming the assessed value to be an accurate reflection of its market value) of $406,380. III. Discussion (a) The resulting trust claim [42] As one of the grounds of appeal in this case concerns the trial judge's acceptance of Mrs. Wong's claim in resulting trust, I think it may be useful to recall that, in Canada, the use of resulting trust principles as a means of resolving matrimonial property disputes was beset by doctrinal dif- ferences, as the decisions of the Supreme Court of Canada in Murdoch v. Murdoch (1973), [1975] 1 S.C.R. 423, 13 R.F.L. 185, and Rathwell v. Rathwell, [1978] 2 S.C.R. 436, 1 R.F.L. (2d) 1, amply illustrate. That unhappy history was referred to at the outset of the minority judgment of Dickson J., as he then was, in Rathwell (at S.C.R. 442): This appeal affords the Court an opportunity of again considering the juridical basis for the resolution of matrimonial property disputes. The settlement of such disputes has been bedeviled by conflicting doctrine and a continuing struggle between the "justice and equity" school, with Rimmer v. Rimmer [[1953] 1 Q.B. 63], the leading case and Lord Denning the dominant exponent, and the "intent" school, reflected in several of the speeches delivered in the House of Lords in Pettitt v. Pettitt [[1970] A.C. 777] and Gissing v. Gissing [[1971] A.C. 886], and the judgment of this Court in Murdoch v. Murdoch [[1975] 1 S.C.R. 423]. The charge raised against the former school is that of dispensing "palm-tree" justice; against the latter school, that of meaningless ritual in searching for a phantom intent. In England, in spite of apparent reversal in Pettitt and in Gissing, the justice and equity tide flowed unabated until, in 1970, Parliament effectively removed matrimonial property disputes in England from the common law by enacting the Matrimonial Proceedings and Property Act, 1970, c. 45, .... In earlier days the view was taken that on marriage "man and woman are one and that one is the man." The introduction generally of Married Women's Property Acts made it possible for wives to hold separate property but did little otherwise to improve the lot of married women. The custom by which real estate acquired by a married couple was taken in the name of the husband, coupled with the reverence paid to registered title, militated against wives. The view expressed in Rimmer that matrimonial property ought not to be governed by the strict considerations commonly applied between strangers survived Gissing and Pettitt, but was coldly received by this Court in Thompson v. Thompson [[1961] S.C.R. 3]. [43] In Rathwell, Dickson J. went on to refer to the changes, both legal and non-legal, that pointed the way to the acceptance of the constructive trust as a remedial tool in resolving matrimonial property disputes (at 443-44): Many factors, legal and non-legal, have emerged to modify the position of earlier days. Among these factors are a more enlightened attitude toward the status of women, altered life-styles, dynamic socio- economic changes. Increasingly, the work of a woman in the management of the home and rearing of the children, as wife and mother, is recognized as an economic contribution to the family unit. Canadian legislatures generally have given little or no guidance for the resolution of matrimonial property disputes, with the result that laws applied are perforce judge-made laws.... On the legal front, acceptance of the notion of restitution and unjust enrichment in Canadian jurisprudence (Deglman v. Guaranty Trust Company [[1954] S.C.R. 725]) has opened the way to recognition of the constructive trust as an available and useful remedial tool in resolving matrimonial property disputes. Lacking that, a court is reduced to searching for actual, inferred or, possibly, imputed agreement (common intent) when the plain fact is that there rarely is agreement because the parties do not turn their minds to the eventuality of separation and divorce.... [Emphasis added.] [44] In Pettkus v. Becker, [1980] 2 S.C.R. 834, 19 R.F.L. (2d) 165, the Supreme Court of Canada, in a majority judgment, applied the doctrine of constructive trust in respect of some property owned by one of the parties to a relationship "tantamount to spousal". Mr. Justice Dickson, giving judgment for the majority, again discussed the equivocal state of matrimonial property law following the decisions in Murdoch, supra, and Rathwell, supra, and, in doing so, made reference to the difficulties inherent in using "common intention" as the conceptual underpinning for resulting trusts (at S.C.R. 842- 43): A majority of the Court in Murdoch v. Murdoch adopted the "common intention" concept of Lord Diplock in Gissing: Difficult as they are to solve, however, these problems as to the amount of the share of a spouse in the beneficial interest in a matri- monial home where the legal estate is vested solely in the other spouse, only arise in cases where the court is satisfied by the words or conduct of the parties that it was their common intention that the beneficial interest was not to belong solely to the spouse in whom the legal estate was vested but was to be shared between them in some proportion or other. [p. 438] In Murdoch, it was held that there was no evidence of common intention. In Rathwell, supra common intention was held to exist. Although the notion of common intention was endorsed in Murdoch and in Rathwell, many difficulties, chronicled in the cases and in the legal literature on the subject, inhered in the application of the doctrine in matrimonial property disputes. The sought-for "common intention" is rarely, if ever, express; the courts must glean "phantom intent" from the conduct of the parties.... The artificiality of the common intention approach has been stressed. Professor Donovan Waters in a comment in (1975), 53 Can. Bar Rev. 366 stated: In other words, this "discovery" of an implied common intention prior to the acquisition is in many cases a mere vehicle or formula for giving the wife a just and equitable share in the disputed asset. It is in fact a constructive trust approach masquerading as a resulting trust approach. [at p. 368] Professor Waters also observed, in a discussion of the resulting trust and the constructive trust doctrines: After all, in few cases will the inferring of an agreement be impossible or unreasonable, and, where it is so, justice and equity may well come to the same conclusion as that produced by the law of resulting trusts. But too often the resulting trust theory produces a result at odds with what would seem the more desirable outcome, or there is a fight through the appeal courts, and then what may well be difference of judicial opinion on the factual merits becomes a difference on the subtleties of the law of trusts. [at p. 377] [Emphasis added.] [45] The decisions of the Supreme Court of Canada in Murdoch and Rathwell are generally regarded as having provided the impetus for the passage of matrimonial property legislation in the various provinces. British Columbia has matrimonial property legislation which governs the division of property between those who have been married, but there is no legislation in this province governing the division of property between those who have lived together in a relationship "tantamount to spousal". As a result, parties to such a relationship must look to equity, in particular, the principles of unjust enrichment, to resolve property disputes if the relationship ends. [46] In the present case, the trial judge concluded that Mrs. Wong was entitled to a 50% interest in the various assets, whether by way of resulting or constructive trust. To the extent the declaratory order rests on a resulting trust, Mr. Wong asserts that the trial judge "erred in finding a common intention sufficient to support the existence of a resulting trust". [47] As to Mrs. Wong's claim based on resulting trust, the trial judge said, in part: [67] A resulting trust exists where there is an agreement or a common intention, expressed or implied, to share an asset: Brundage v. Campbell, [1993] 2 W.W.R. 186 (B.C.C.A.). [68] The evidence provides abundant support for this claim. From the very outset, the relationship of the parties was equivalent to that of a marriage. It lasted for some 13 years, during which time the plaintiff gave birth to four children, one of whom died and another was given up for adoption. [69] The defendant sought to minimize the plaintiff's contribution to the care and raising of their children. * * * [71] ... I find that the plaintiff was at all times the person principally responsible for the care and upbringing of the remaining two children, albeit with the valuable assistance of her mother from time to time. [72] Mr. Wong also claimed that all of the corporate shares and property interests that had been placed in Mrs. Wong's name were and are held by her as his trustee. In the case of each such asset, when asked why he put it in her name, he replied "because I trusted her". * * * [74] I reject the trust claim made by the defendant. It was to their mutual advantage that, at times, titles to assets were placed in the name of the plaintiff. [75] Mrs. Wong was the family homemaker. She cared for her "husband" and the children and she attended to all of the household tasks. She also worked outside the home at various times and at various jobs, always contributing her earnings to payment of household expenses. [76] On the evidence, I find that both parties considered the business interests and property investments to be a common enterprise. It is true that Mr. Wong did all of the negotiating, arranging the financing when properties were bought and the terms of sale when properties were sold. But by contributing as she did, and to the best of her ability, Mrs. Wong made it possible for Mr. Wong to concentrate all of his considerable energy and skill on the goal of making money and securing their financial future. [48] From the trial judge's reasons, I think it is apparent that subsumed in the "finding" of "common intention" is the notion of what a "just and equitable" result would be. While I recognize that approach was not disapproved in Brundage v. Campbell (1992), 73 B.C.L.R. (2d) 362, [1993] 2 W.W.R. 186 (C.A.), it seems to me that it is preferable to avoid it, in view of the many valid criticisms made of it. [49] In that regard, I consider Professor Donovan Waters' observation, to which Dickson J. made reference in Pettkus v. Becker, supra, at S.C.R. 843, to be apposite: In other words, this "discovery" of an implied common intention prior to the acquisition is in many cases a mere vehicle or formula for giving the wife a just and equitable share in the disputed asset. It is in fact a constructive trust approach masquerading as a resulting trust approach. [50] In view of what I have said, I do not propose to consider whether the learned trial judge "erred in finding a common intention sufficient to support the existence of a resulting trust", but to turn instead to the question of whether the trial judgment can be supported by reference to the principles of unjust enrichment. (b) The constructive trust claim [51] In respect of Mrs. Wong's claim to a remedy in construct- ive trust, the trial judge said, in part: [77] I turn next to the plaintiff's claim to a constructive trust. In order to establish a trust of this nature there must be: a) an unjust enrichment of one person; b) a corresponding deprivation of the other; and c) no juristic reason for the enrichment. [78] ... All three necessary elements are present, and the evidence also supports the finding of a causal connection between the contribution made by the plaintiff and the acquisition, preservation, maintenance or improvement of the various assets. [79] To permit the defendant to retain sole ownership of the assets standing in his name, assets which the plaintiff's contribution helped him to accumulate, would be to unjustly enrich him while depriving the plaintiff of that to which she is entitled. I find that, in the circumstances of this case, both parties were reasonably entitled to expect that they would share the benefits of the accumulated assets, and there can be no juristic reason for depriving the plaintiff of her legitimate expectation. [80] Indeed, the evidence is so conclusive on this point that, in argument, Mr. Mahoney conceded that the claim for a constructive trust had been made out, and that the only issue remaining is the extent of the plaintiff's interest in the assets. [52] The three elements required to establish unjust enrichment have been set out in a number of Supreme Court of Canada cases, including Pettkus v. Becker, supra, Sorochan v. Sorochan, [1986] 2 S.C.R. 38, 2 R.F.L. (3d) 225, and Peter v. Beblow, [1993] 1 S.C.R. 980, 44 R.F.L. (3d) 329. [53] In this case, it appears to me to be indisputable that the first two elements were established, that is, an enrichment and a corresponding deprivation. In Sorochan v. Sorochan, supra, the Supreme Court held that unpaid performance of domestic duties within a relationship undoubtedly constituted an enrichment of the partner for whose benefit the services were performed. In the present case, Mrs. Wong's household management and child-care services constituted a benefit to the appellant in that he received those services without paying compensation, thereby enhancing his ability to use his business income and assets for investment purposes. The services performed by Mrs. Wong constituted a corresponding detriment to her, in that she provided the services without compensation. [54] The majority judgment in Peter v. Beblow, supra, suggests to me that it is in relation to the third element, the absence of any juristic reason for the enrichment, that arguments such as those put forward by the appellant in this case should be examined. [55] In Peter v. Beblow, the trial judge found that Mr. Beblow had been unjustly enriched by the work performed in his home without payment to Ms. Peter, with whom he had cohabited for a number of years. On appeal to this Court, the trial judgment giving Ms. Peter an interest in property to which Mr. Beblow held title was overturned. Although Mr. Beblow conceded that he had received a benefit from Ms. Peter's labour, this Court concluded that the other elements of unjust enrichment had not been made out. On the ground that Ms. Peter and her children had lived in Mr. Beblow's house rent-free, with Mr. Beblow's contributing more for the family's groceries than Ms. Peter, this Court disagreed with the trial judge's finding that Ms. Peter had suffered a deprivation. That Ms. Peter had been able to acquire property during the time she lived with Mr. Beblow was viewed as evidence supporting the contention that Ms. Peter had not suffered any deprivation. Further, this Court concluded that, even if all the conditions of unjust enrichment had been met, there was not a sufficient nexus between the appellant's contribution and the property in question to entitle Ms. Peter to receive, by way of relief, the property itself rather than a monetary judgment. [56] On appeal to the Supreme Court of Canada, the trial judgment was restored. Madam Justice McLachlin, giving the majority judgment, discussed the concept of unjust enrichment, and the place in the analysis where arguments such as those put forward by Mr. Beblow should be considered (at S.C.R. 990-92): In every case, the fundamental concern is the legitimate expectation of the parties: Pettkus v. Becker, supra. In family cases, this concern may raise the following subsidiary questions: (i) Did the plaintiff confer the benefit as a valid gift or in pursuance of a valid common law, equitable or statutory obligation which he or she owed to the defendant? (ii) Did the plaintiff submit to, or compromise, the defendant's honest claim? (iii) Does public policy support the enrichment? * * * This Court has held that a common law spouse generally owes no duty at common law, in equity or by statute to perform work or services for her partner. As Dickson C.J., speaking for the Court put it in Sorochan v. Sorochan, supra, at p. 46, the common law wife "was under no obligation, contractual or otherwise, to perform the work and services in the home or on the land". So there is no general duty presumed by the law on a common law spouse to perform work and services for her partner. * * * The third factor mentioned above raises directly the issue of public policy. While it may be stated in different ways, the argument at base is simply that some types of services in some types of relationships should not be recognized as supporting legal claims for policy reasons. More particularly, homemaking and childcare services should not, in a marital or quasi-marital relationship, be viewed as giving rise to equitable claims against the other spouse. [57] The essence of the appellant's argument in the present case is not dissimilar. Mr. Wong argues that the trial judge failed to give effect to the difference in the nature or extent of the parties' respective contributions to the acquisition or accumulation of the assets. His complaint is succinctly stated in the following paragraph from Mr. Wong's factum, which I repeat for convenience of reference: 11. The Respondent's sole contribution throughout the relationship was providing some child care, some household tasks and by contributing some of her income to family and household expenses. She did not contribute anything integral to either the import/ export and real estate businesses. [58] In relation to the policy argument raised in Peter v. Beblow, supra, McLachlin J., after making reference to case law and academic writing which question the policy of viewing some kinds of domestic services, such as homemaking and child care, as supporting equitable claims, goes on to express a strong position to the contrary, at 993-94: It is my view that this argument is no longer tenable in Canada, either from the point of view of logic or authority. From the point of view of logic, I share the view of Professors Hovius and Youdan in The Law of Family Property (1991), at p. 136, that "there is no logical reason to distinguish domestic services from other contributions". The notion that household and childcare services are not worthy of recognition by the court fails to recognize the fact that these services are of great value, not only to the family, but to the other spouse. As Lord Simon observed nearly 30 years ago: "The cock-bird can feather his nest precisely because he is not required to spend most of his time sitting on it" ("With All My Worldly Goods," Holdsworth Lecture (University of Birmingham, March 20, 1964, at p. 32). The notion, moreover, is a pernicious one that systematically devalues the contributions which women tend to make to the family economy. It has contributed to the phenomenon of the feminization of poverty which this Court identified in Moge v. Moge, [1992] 3 S.C.R. 813, per L'Heureux-Dub‚ J., at pp. 853-54. Moreover, the argument cannot stand with the jurisprudence which this and other courts have laid down. Today courts regularly recognize the value of domestic services. This became clear with the Court's holding in Sorochan, leading one author to comment that "[t]he Canadian Supreme court has finally recognized that domestic contribution is of equal value as financial contribution in trusts of property in the familial context" (Mary Welstead, "Domestic Contribution and Constructive Trusts: The Canadian Perspective", [1987] Denning L.J. 151, at p. 161). If there could be any doubt about the need for the law to honestly recognize the value of domestic services, it must be considered to have been banished by Moge v. Moge, supra. While that case arose under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the value of the services does not change with the legal remedy invoked. I cannot give credence to the argument that legal recognition of the value of domestic services will do violence to the law and the social structure of our society. It has been recognized for some time that such services are entitled to recognition and compensation under the Divorce Act and the provincial acts governing the distribution of matrimonial property. Yet society has not been visibly harmed. I do not think that similar recognition in the equitable doctrine of unjust enrichment will have any different effect. [59] In my respectful view, the argument that the domestic services Mrs. Wong performed "did not contribute anything integral to either the import/export and real estate businesses" is at odds with the legal recognition now given to the value of domestic services and must be rejected. [60] I add that, in addition to the domestic services she performed, Mrs. Wong made a number of other contributions. Those include the use of her earnings for the family's benefit, from paying the rent to paying for food for their daughter in the early years, working in the mushroom business without compensation and using the salary she received from Five Oceans and East Sea for family purposes. [61] The appellant's other contention is that the trial judge erred by failing to take into account the value of the assets Mr. Wong brought to the relationship. In my view, the trial judge did not err in the view he took of the evidence. This was a relationship of a good many years' duration in which each party made extensive contributions which went to their personal and financial betterment. [62] In my opinion, the trial judge did not err in concluding that the reasonable expectation of the parties was that the assets they acquired or accumulated would be shared on an equal basis and that granting Mrs. Wong a restitutionary remedy in the form of an equal interest in the various assets was appropriate. [63] I would not accede to the first ground of appeal. IV. The debt alleged to be owed by Five Oceans Enterprises Ltd. to Korea Daesong Trading Corporation [64] In the fourth ground of appeal, the appellant contends that the trial judge erred in finding that the debt owed by Five Oceans to Korea Daesong Trading Corporation had been extinguished by the passage of time. The order to which that ground relates provides: THIS COURT FURTHER ORDERS that an alleged debt of approximately $380,000.00 to Korea Dysong [sic] Trading Corp. shall not be included in any valuation of the shares of Five Oceans Enterprises Ltd. [65] The trial judge gave two reasons for concluding that the debt Mr. Wong asserted he owed to Korea Daesong Trading Corporation should not be visited on Mrs. Wong in determining the value of the shares in Five Oceans. The first is that the trial judge did not give credence to the appellant's evidence about the debt. The second is that, in any event, the debt, under British Columbia law, was unenforceable because it was statute barred. In my respectful view, both reasons are supportable. [66] I would not accede to that ground of appeal. [67] Finally, with regard to Mr. Wong's argument that this Court should make a monetary award in order to bring an end to any further proceedings in the trial court, I say with deference that, as no appeal has been brought from the orders made in the action brought under the Partition of Property Act, there is no basis upon which such an order could properly be made. V. Conclusion [68] In the result, I would dismiss the appeal. "THE HONOURABLE MADAM JUSTICE ROWLES" I AGREE: "THE HONOURABLE MR. JUSTICE GOLDIE" I AGREE: "THE HONOURABLE MADAM JUSTICE NEWBURY"