Date: 19970428 Docket: SO03511 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ALAN C. RICHFIELD PLAINTIFF AND: LILLI GRETHE JESPERSEN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BOYLE Counsel for the Plaintiff: A. Benson Counsel for the Defendant: T. Armstrong Place and Date of Hearing: New Westminster, B.C. April 7-11, 1997 [1] The Jespersen family , in 1968, befriended Knud Thalund, originally out of recognition of their common Danish heritage. As time passed, he became, in a social sense, a member of their family. [2] When he died in 1994, he left his estate ($525,000) to the Defendant. In the meantime, the Defendant and her husband had separated, then divorced. The Defendant had begun a common-law relationship with the Plaintiff. (I use "common-law" as a means of describing a relationship which today has statutory recognition under the Family Relations Act). ("the Act"). [3] They lived together from 1983 to 1996. He is 70, she is younger. [4] Plaintiff and Defendant now are separated. The Plaintiff claims an interest in the assets in the Defendant's possession, including the proceeds of the Thalund estate, the latter as a matter of constructive trust, alternatively, he seeks maintenance under the Act. The Defendant takes no issue that the assets, jointly acquired, should be divided equally but contends the Plaintiff has no entitlement to share in the Thalund inheritance. [5] The assets in the Defendant's possession were worth very roughly about $450,000 at the time the parties separated. Assets in the Plaintiff's possession were worth about $5,000. [6] During cohabitation, the parties maintained a joint account. They had agreed their earnings would go into the account; day-to-day expenses would come out. [7] The Defendant brought to the relationship an account of her own, funded by $40,000 from the sale proceeds of her previous family home, shared by she and her then husband. That account was kept separate. [8] The parties, while living together, embarked on some small commercial ventures as partners. They had success operating bingos for others on a management basis and success as well with a karaoke entertainment enterprise. The Plaintiff was the initiator of each of these but the Defendant participated fully. Income and expenses went into and out of joint accounts. They gave up their last enterprise, Karaoke, in 1991 because it left them little free time for their avocation, holidaying in California. [9] When the parties met, the Defendant was an Eaton's employee; the Plaintiff, Sales Manager of a bazaar and novelty firm. [10] The Plaintiff brought personal belongings and a few chattels to the relationship. The Defendant brought most of the furnishings to their home, a co-op housing unit for which the Defendant paid the deposit (net after a refund, $1,500). Included in the Defendant's chattels were (and are) silverware and collectors plates which the Defendant inherited from her family. [11] The parties shared household tasks on the basis of near equality. Financed by the Thalund estate in 1995, they carried out renovations to the co-op unit. The Plaintiff did most of the construction work. The Defendant assisted. [12] During their time together they purchased a series of cars, camper, motorhome, truck and trailers. Apart from domestic use, these vehicles were bound for California where they spent extended holidays. [13] The separation of the parties came about following Mr. Thalund's death. That parting appears to have been precipitated by a difference over the disposition by the Defendant of proceeds from the Thalund estate and by animosity directed by the Plaintiff toward one, particularly, of the Defendant's two young adult sons. [14] The Defendant gave $50,000 from the estate funds to her former husband; $10,000 each to her mother and sister and the same amount to each of her sons. [15] I saw nothing legally, equitably or morally wrong with that. All the circumstances leave the inescapable inference that Mr. Thalund intended the Jespersons to benefit from his estate. He was a reclusive person with, so far as I could tell, few friends. He had been taken into the bosom of the Jesperson family. [16] The Plaintiff became acquainted with Mr. Thalund through the Defendant. The Plaintiff visited Mr. Thalund from time to time at the latter's home and, toward the end of Mr. Thalund's life, at the long term care home where he went to live after a debilitating stroke. [17] There was not the relationship of closeness between the Plaintiff and Mr. Thalund that existed between Mr. Thalund and the Jespersons. Constructive Trust [18] The principles upon which the Plaintiff's claim in equity asserting a constructive trust can be found are set out in Hatfield v Shubrook 98 B.C.L.R. (2d) 201(B.C.C.A.). In that case Prowse J.A. at p. 204 observed: "as long as the essential ingredients of a constructive trust are found, they may be applied, whether the relationship is long-term, traditional or childless". [19] Those ingredients are enrichment of one party by the other, a corresponding deprivation of the other and no juristic reason for the enrichment. [20] In Hatfield, there was a relationship similar to marriage as there was between these parties. The property in Hatfield at issue was residential property in one party's name, but to which the other party had contributed extensive labour improving that property. In that labour was found constructive entitlement. [21] The Plaintiff's claim to an interest in the Thalund estate is based, in great part, upon a visit to which he testified as having been made by him on his own to Mr. Thalund at Mr. Thalund's home. The Plaintiff said, in my summary, he learned Mr. Thalund had no will and he (the "Plaintiff") influenced Mr. Thalund to make a will leaving his estate to the Defendant, by advising him the government would get the estate if he had no will. (The evidence was of no living relatives). [22] The Defendant testified, again in summary, the will came about after a visit by her to Mr. Thalund's at which time he asked her whether she would like to take over (his property) "when I'm gone". He was prepared to write a document immediately to that effect. Her evidence was that she insisted he should see a lawyer to draw a proper will. [23] Mr. Thalund did have a will professionally drawn. Both parties attended with him at the time. He was interviewed at some length by the solicitor in privacy. The solicitor's notes were filed in evidence. [24] I did not conclude it was necessary to decide the order of events leading to the will . [25] For these purposes, taking the position most favourable to the Plaintiff, his participation, if it is as he describes it, did not constitute "enrichment" of the Defendant at his expense. [26] The estate went to the Defendant because of her family's long and kindly relationship with Mr. Thalund. The Plaintiff's part in no way resulted in an enrichment that was not just. It was not at the Plaintiff's expense. The evidence does not suggest in any way the Plaintiff had any possibility of being included in Mr. Thalund's will. He was not deprived of anything by the bequest. [27] Even if, as he testifies, he motivated Mr. Thalund to make a will and even if he reinforced Mr. Thalund's intention to leave his estate to the Defendant, that does not constitute a "corresponding deprivation" of the Plaintiff to an enrichment of the Defendant. [28] In Peter v Beblow [1993] 1.S.C.R. 980, Cory J. observed at p. 1012: "I would have thought that, if there is enrichment, that it would almost invariably follow that there is a corresponding deprivation suffered by the person who provided the enrichment". [29] That may be so of an unjust enrichment but, to turn that on its head, where between these parties is the deprivation? There is no evidence to support a claim the Plaintiff has been deprived of something to which he had made contribution or to which he was entitled to a share but was denied that share by the Defendant's enrichment. The Defendant's estate was enhanced by the inheritance but not at the Plaintiff's expense, even if (a point not decided) he encouraged the bequest. [30] There was nothing in the partnership of their working or domestic lives that could be said to extend to and establish entitlement of the Defendant to an interest in the inheritance. The Plaintiff did make some investment suggestions but they were not vital. Indeed, if I understand the investment documents correctly, they may not have been entirely helpful. [31] The Plaintiff claimed a resulting trust in the alternative to constructive trust but that was not carried forward into argument. [32] The evidence did not support promises or conduct which would found a resulting trust. The claim based upon constructive trust is dismissed. Family Relations Act [33] The Defendant, thanks to the Thalund inheritance, is in a much better capital position than is the Plaintiff. The Plaintiff's evidence is he understood the inheritance was to be shared with him. The Plaintiff's evidence and her conduct at the material time is to the contrary. [34] The Defendant's income from interest on investments is about $1,800 monthly. She received $425 monthly from pension entitlement. That $1,800 figure is nominal because her monthly permissible draw was fixed at $1,500 on an interim basis by Court Order pending this hearing. Her expenses are $2,900 (rounded). Her debts are relatively minimal. [35] She has savings and investments totalling $332,000. [36] The Defendant is anxious to assist her sons as much as possible but my sense of things is she should preserve her capital unless their immediate needs are great. [37] Each of the parties has the advantage of living in co-op housing. [38] The Plaintiff's monthly income at trial was $1,300 in total from O.A.S., C.P.P. and a small pension from the United Kingdom. He is a talented entertainer and has plans to seek contract employment in that field, but changing times and audiences dampen his expectations of the same success (Sinatra gave way to rock and roll) the parties enjoyed in their karaoke partnership. Further, he testified he no longer is able to lift the sound system equipment. [39] He puts his projected expenses at $2,812 per month and declares a $1,528 shortfall. [40] That is on the high side. For instance: $500 monthly for "emergencies", $100 per month for birthdays and Christmas gifts and $400 per month to provide for a trip to visit his sisters in England. [41] At trial, his assets included savings of about $13,500, furniture worth no more than $1,000 and a car valued at about $12,300. [42] Some of his savings came from unilateral sale of a fifth wheel trailer which was a family asset. All other vehicles they bought and sold were through their joint account. The last, the fifth wheel, was financed by sale of their motorhome and through the Defendant's account. [43] The Plaintiff testified to health problems. They included a heart attack in 1981 from which he recovered, but which wiped out part of his memory capability and left him fearful of recurrence, a condition similar to arthritis in his hands, lung problems, ulcers and arteriosclerosis. [44] When the parties began their relationship, each put $3,500 into their joint bank account. Household jobs were shared close enough to 50/50 to call it square. [45] The Plaintiff on several occasions urged the Defendant to marry him (before and after the inheritance), but she clearly and definitely said: "No". [46] They lived on her income from Eaton's (fulltime/parttime and then casual) and from their joint income from, bingo management and karaoke. Those joint enterprises were generally weekend only. For one year, the Plaintiff was employed by the Semiahmoo Housing Society. [47] No careful records were kept. Tax was avoided when possible. What came in appears to have been spent. During a three year period of good success at karaoke and bingo, they may have grossed $75,000 to $90,000 (perhaps $50,000 net in a top year). The Plaintiff looked after the business end of their partnership. [48] The Defendant could not have organized or conducted bingo and karaoke on her own but the necessary inference from the evidence is that the Plaintiff needed an assistant. Each contributed to success. [49] Looking to sections 57 and 61 of the Act: (a) Each of these parties contributed to their own and to the general family expenses and to the day-to-day household duties; (b) There was no express of implied agreement between the parties that one would support the other; (c) There are no children within the meaning of the Act; (d) The Defendant gave up her dependable job at Eaton's to some degree at the urging of the Plaintiff but it could not be said she did so other than voluntarily. However, putting aside the inheritance which is not relevant to this point, she did surrender income and benefits as a result of the relationship. [50] The Plaintiff was put to no economic disadvantage as a result of the relationship. He was somewhat better off. His housing improved. He had a partner who helped make his karaoke and bingo enterprise profitable. [51] There are family assets in which it is agreed he has an interest although the Act does not apply to them. His share is considerably more than what he brought to the relationship. For clarity, the inheritance is not a family or a joint asset. [52] The Plaintiff was employed in sales when the parties joined forces. For reasons unknown to the court, that job ceased. There is no suggestion the cause arose from the common law union. [53] Again, putting aside the inheritance, each of the parties relies upon pension income. The Plaintiff's is twice more than hers ($425) -- although it nevertheless is minimal. [54] He hopes to return to the entertainment field (not karaoke) and has purchased sound equipment for that purpose but it probably is not unreasonable to infer his income will be limited by health and the passing years -- not by diminished talent. [55] The Plaintiff has a better chance of earning a modest income in the short term than does the Defendant. Neither of them, it must be said, has long term prospects. The Defendant has no likelihood of substantial employment either in the short or the long term. [56] The inheritance -- something the Defendant was likely to have received whether or not the Plaintiff became part of her life, places her in better economic circumstances that he is. [57] The parties have settled their shares in household furniture and vehicles (apart from the fifth wheel) in an appropriate manner as though the Act applied. The Plaintiff kept unto himself the proceeds from sale of their fifth wheel trailer ($16,800) and a bank account ($4,400). [58] The vehicles, including the fifth wheel, today represent $30,800 from the Thalund inheritance. I should say that does not constitute an intermingling of funds which might somehow add to the Plaintiff's trust arguments. Those proceeds were kept as separate by the Defendant as firmly as was her intention not to marry. Only when she decided to put some part of the fund to a joint purpose did that allocation take on a family quality. [59] The Defendant gave the Plaintiff $10,000 from the inheritance. I took that to be entirely ex gratia. The same is true of a $700 set of golf clubs. [60] Although Messier v Delage (1983) 35 R.F.L. (2d) 237 was a case under the Divorce Act, it applies equally and with continuing force to relationships such as existed between these parties: "The equitably sharing of economic consequences of marriage or marriage breakdown, however, is not a general tool of redistribution which is activated by the mere fact of marriage". [61] That observation applies to the issue of maintenance in this case. [62] The economic relationship of the parties was of common contribution to and use of funds from their incomes. No economic disadvantage to either party arose from the relationship. There are no continuing consequences apart from an end to the pooling of their incomes. [63] That the Defendant's intention was to keep the inheritance separate is clear from the Defendant's segregation of the proceeds in the same way she kept separate the $40,000 she brought to the relationship initially. There was some common benefit but there was no intermingling of the fund itself. [64] When the Defendant paid out of the inheritance for purposes for which the parties took, directly or indirectly, joint benefit, those purposes were almost entirely for recreational/holiday activity. [65] The Plaintiff will lose that benefit but the Defendant's reserve of funds is not now so substantial that it will do much more than provide day-to-day income. She, too, will have to live more carefully. There will be no order for maintenance [66] There is no basis in trust or under the Act to make the order, nor consideration to find a contract but my understanding is the Defendant does not disagree the Plaintiff should keep the assets he now has (including the proceeds from sale or the fifth wheel). Perhaps it can be viewed as compensation for his work on the renovations the Defendant now enjoys exclusively. [67] The parties may settle or make submissions on costs in writing or in chambers as they agree. Costs in this case should not be punitive because the issue was of a kind properly tested. "Boyle, J"