DATE OF RELEASE: March 29, 1996 No. 21273 Kamloops Registry In the Supreme Court of British Columbia Between: ANTHONY GRIX STRUDWICK PLAINTIFF And: MAY BELL MORRISON, Executrix for the Estate of Joan Audrey Strudwick, Deceased, BRITISH COLUMBIA SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, YVONNE MILLICENT JEAN PARIS, CAROL ANNE COLLIE, MARY JANE ELAINE FLYNN aka MARY JANE ELAINE CAMPBELL, NOEL JOSEPH STANLEY PARIS and BARBARA STRUDWICK DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BLAIR Appearances: Counsel for the Plaintiff- Steven P. DuMont May Bell Morrison appearing on her own behalf. Counsel for the Defendants: Yvonne Millicent Jean Paris, Noel Joseph Stanley Paris, Carol Anne Collie and Mary Jane Elaine Flynn aka Mary Jane Elaine Campbell-John B. Hira Date of Hearing: March 18 & 19, 1996, Kamloops, B.C. 1 The plaintiff, Anthony Strudwick, seeks a share of the estate of Joan Strudwick who died in February 1994. Joan Strudwick was stepmother to Anthony Strudwick, through her marriage to the latter's father, Harry Strudwick, who died in 1988. 2 Joan Strudwick by her will dated August 9, 1991, left the bulk of her estate to be divided into five equal shares, with each of her four children, Yvonne Paris, now Yvonne Gerlack, Noel Paris, Carol Collie, and Mary Jane Flynn, to receive a share with the fifth share to be paid to Barbara Strudwick, the plaintiff's wife. Anthony Strudwick received nothing under his stepmother's will, contrary to what he says was the understanding between himself, his father and his stepmother. Joan Strudwick's $250,000 estate consisted of approximately $50,000 from various small assets and $200,000 from property which I will refer to as "the farm", located at Nanoose Bay, Vancouver Island. 3 The plaintiff submits that his efforts in developing the farm unjustly enriched his late father and, upon the latter's death, his stepmother, Joan Strudwick, giving rise to the claim that the farm was held by Harry and Joan Strudwick subject to constructive and resulting trusts in favour of Anthony Strudwick. 4 The late Harry Strudwick left England in 1949 with his 10 year old son Anthony Strudwick and settled on Vancouver Island. Harry Strudwick's first wife, Anthony Strudwick's mother, remained in the United Kingdom. Harry Strudwick purchased the farm in 1950 and he and his son commenced developing the farm for vegetable cultivation. Anthony Strudwick assisted his father in his out of school hours until 1954 when he finished grade eight. At that time, he testified, his father removed him from school and for the next three years he worked full time on the farm until he moved to Port Alberni and a job in the forest industry. He received some monies from his father during these years on the farm, but they were nominal and insufficient to be described as pay. 5 After moving to Port Alberni in 1957, Anthony Strudwick maintained contact with his father and returned to assist on the farm when available, although he testified he stayed overnight on the farm only once or twice a year between 1957 and 1976. Anthony Strudwick moved with his wife and three children to Kamloops in 1976, and following the move he visited his father on the farm about twice a year between 1976 and 1988, although they maintained contact through correspondence and telephone calls. 6 Harry Strudwick met Joan Strudwick in the early 1950s. In 1967 she moved onto the farm and the couple married in 1971. Until his death in 1988 at age 80, Harry Strudwick worked the farm, producing various vegetables for sale. Joan Strudwick assisted her husband by looking after the household chores. They enjoyed a close relationship throughout their marriage and when money became available to them from the sale of a portion of the farm, they used it to travel. 7 Joan Strudwick separated from her first husband Timothy Paris in 1948, leaving behind her four children, the oldest, Yvonne Gerlack, being just 5 years old at the time. Joan Strudwick saw nothing of her children until 1966 when the defendant Yvonne Gerlack, initiated contact with her. Subsequently, Joan Strudwick reestablished contact with all of her children. I conclude that although there might well have been friction between Joan Strudwick and her four children after 1966, there existed strong ties between Mrs. Strudwick and her children. 8 Anthony Strudwick submits that the work he did on the farm between 1950 and 1957, together with the assistance he rendered his father and his stepmother in the years after he left the farm and Joan Strudwick's death in 1994, entitles him to share in the value of the farm. Anthony Strudwick testified that his father told him he would inherit the farm, although Joan Strudwick, if she survived him, would be able to stay on the farm until she died. The plaintiff's case included evidence from friends of Harry and Joan Strudwick who testified that Mr. and Mrs. Strudwick stated on occasion that Mrs. Strudwick would be able to stay on the farm following Harry Strudwick's death and the farm would then belong to Anthony Strudwick. 9 I accept the evidence that Harry and Joan Strudwick talked of the farm going to Anthony Strudwick, however, they did nothing to give effect to their statements. In 1971, after their marriage, Harry Strudwick transferred the farm from his name alone into a joint tenancy with his wife. In 1983, the couple severed the joint tenancy and held the property as tenants in common. After Harry Strudwick's death, Joan Strudwick, as executrix of her husband's estate, transferred his half interest in the farm into her name. At the time of her death the farm was in her name alone. Their dealings with the farm and their respective estates over the years leads me to conclude that in spite of their statements about the disposition of the farm, they took no steps to pass the farm to Anthony Strudwick. Those statements do not in themselves give rise to a claim by Anthony Strudwick, although they apparently raised his expectations. 10 Harry Strudwick's will, prepared in 1986, provided for a gift of $4,200 to his son with the residue of his estate, including his interest in the farm, to go to his widow, provided that if she failed to survive him, his estate would go to his son Anthony Strudwick. He further provided in his will that if his wife and son predeceased him, that his estate would be divided into four shares, with three of his wife's children each to receive a share and the fourth share to be divided between his grandchildren, Anthony Strudwick's three sons. Harry Strudwick specifically provided for his son in his will, although the bulk of his estate went to his wife which was not surprising considering this lengthy relationship. Anthony Strudwick took no action to vary his father's will, testifying that he anticipated that the farm would come to him after his stepmother died and that she would act on the statements that the farm would go to him. 11 Anthony Strudwick alleges the effort he put into the farm over the years enriched his father and, subsequently, his stepmother, giving rise to a constructive and resulting trusts in his favour. The plaintiff says both his father and stepmother acknowledged the trust through their statements that the farm would eventually be his and, further, that his stepmother, Joan Strudwick, in taking the title to the family farm acknowledged that the farm would eventually go to her stepson, Anthony Strudwick. 12 In Pettkus v. Becker (1980) 2 S.C.R. 834, the Supreme Court of Canada held that to establish an unjust enrichment, the plaintiff must prove: (a) an enrichment; (b) a corresponding deprivation suffered by the plaintiff; and (c) the absence of any juristic reason for the enrichment. The plaintiff submits that his efforts in his out of school hours when he lived on the farm between 1950 and 1957, coupled with his assistance after 1957, enriched both his father and his stepmother. The plaintiff submits that his efforts, for which he was not paid, resulted in a detriment to him. The plaintiff submits that the work demanded by the farm led him to leave school upon finishing grade eight and precluded him from completing his education. The plaintiff submits further that there is no juristic reason for the enrichment which went originally to his father, Harry Strudwick. 13 The plaintiff relied on the Supreme and Court of Appeal decisions in Clarkson v. McCrossen, (30 November 1993) Vancouver C921747 and (17 March 1995) Vancouver CA018132, in support of his claim. In that case, the plaintiff claimed a share of her late stepfather's estate on the basis that he had been unjustly enriched by her. There are striking differences between the plaintiff's position in the Clarkson case, compared to Anthony Strudwick's situation. In Clarkson, the plaintiff devoted many years of her life to caring for both her mother and her stepfather, at substantial personal cost to herself. She tended them through serious illnesses, she limited her employment opportunities, she restricted her investment opportunities and she declined to pursue a personal social life. She did so not expecting to be paid, but, in part, in the expectation that she would receive her stepfather's home. 14 Although Anthony Strudwick worked on the farm during his childhood, his involvement after 1957 when he left the farm was of a limited nature. His employment, marriage, place of residence and family obligations necessarily restricted his contact with both his father and his stepmother. For the 31 years after Anthony Strudwick left the farm, his father expanded the market garden operation and constructed a new home on the property. After Harry Strudwick's death in 1988, his widow discontinued the market and garden operation. Anthony Strudwick assisted his stepmother from time to time by winterizing her home and repairing her well, but this assistance was minimal. There is no evidence, as in Clarkson (supra), that Anthony Strudwick's involvement in the farm was performed by him solely in expectation that he would receive the farm, although I do accept the evidence that at times, prior to their deaths, Harry and Joan Strudwick indicated the farm would later belong to Anthony Strudwick. The evidence indicates that there was both a benefit to the Harry Strudwick and a detriment to the son found in the relationship. 15 In the context of this case, was there an obligation existing between Anthony Strudwick and his father which would justify the enrichment? Absent an obligation, there was no juristic reason for the enrichment. The obligation here, it seems to me, arose from the familial bond between father and son which saw the pair working together on the farm to support themselves. As a matter of public policy, such limited economic activity as occurred in this case involving father and son ought to be encouraged without necessarily attracting a subsequent claim for unjust enrichment. I conclude that the obligation between father and son, in the circumstances of this case, provided a proper basis for the limited enrichment which occurred here. 16 The courts in the Clarkson (supra), Peter v. Beblow (1993) 77 B.C.L.R. (2d) 1 (S.C.C.), and Guzzo v. Catlin Estate (1989) 33 E.T.R. 163 (B.C.C.A.), canvassed claims for unjust enrichment. In these three cases the evidence reflected the plaintiffs' substantial efforts in providing a substantial benefit at considerable detriment to themselves. In reviewing these cases I conclude that the efforts made by the plaintiff must attain a certain threshold in which the benefit provided and detriment suffered by the plaintiff must be substantial before a claim for unjust enrichment ought to be allowed. Even if I had concluded that there was no juristic reason for the enrichment, I do not find the benefit to either Harry Strudwick or Joan Strudwick and the detriment to Anthony Strudwick to be of such a nature and of such substance as to conclude that there has been unjust enrichment from which I might then proceed to determine the existence of the constructive and resulting trusts alleged by the plaintiff. 17 Although Harry Strudwick's provision for his son in his will and the indirect provision for Anthony Strudwick as provided by Joan Strudwick's gift to the plaintiff's wife, Barbara Strudwick, might appear unfair, it is not the function of the court to utilize the remedy of unjust enrichment to correct what might appear at first glance to be somewhat unfair to Anthony Strudwick. In Peter v. Beblow (supra) Madame Justice McLachlin cautioned at p. 6: There is a tendency on the part of some to view the action for unjust enrichment as a device for doing whatever may seem fair between the parties. In the rush to substantive justice, the principles are sometimes forgotten. 18 I find that the plaintiff has failed to establish that his efforts and activities with regard to the farm were of such consequence as to give rise to a claim for unjust enrichment. The plaintiff's claim is dismissed, with the defendants to receive their costs at scale 3. "R.M.BLAIR" BLAIR J. Kamloops, B.C. March 29, 1996