Date: 19980804 Docket: A963021 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CLAUDIA FRISKIE, LISA GODINHO AND ERNESTO PIOVESAN PLAINTIFFS AND: ROSA PIOVESAN as EXECUTRIX OF THE ESTATE OF GINO PIOVESAN, DECEASED, THE SAID ROSA PIOVESAN AND RITA TEFFEN DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE SAUNDERS Counsel for the Plaintiffs: L.W. Potter Counsel for the Rosa Piovesan: J.F. Galati Place and Date of Hearing: Vancouver, B.C. March 10-13, 1998 and April 9, 1998 [1] Gino Piovesan died on November 13, 1995, survived by his three adult children and his second wife, Rosa Piovesan. [2] In this case the three children claim an interest in his home which, at the time of his death, was registered jointly to himself and Rosa Piovesan. The children contend that one-half of the property was impressed with a trust in their favour, either resulting or constructive. [3] The evidence traces the Piovesans' dealings with the property from the time the plaintiffs' mother, Vittoria Piovesan, died in April 1982, through Gino Piovesan's marriage to Rosa Piovesan in April 1985, to the property transactions which resulted in Gino and Rosa Piovesan being registered as joint tenants. LEGAL CONSIDERATIONS [4] Before turning to a description of the circumstances of this case, it is useful to set out the legal considerations that will determine the outcome of the litigation. [5] First, I observe that the burden of proof lies upon the plaintiffs to establish that the facts essential to their claim are more likely than not. [6] Second, I observe that my assessment of the credibility of the witnesses in this case will determine many of the facts critical to the outcome of the case, as the evidence of the plaintiffs was often contrary to the evidence of the defendant Rosa Piovesan. In this I have considered the observations of Mr. Justice O'Halloran in Farnya v. Chorny (1951), 4 W.W.R. (N.S.) 171 (B.C.C.A.) at pp. 174-75: If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility .... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick- minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.... [7] Third, much of the plaintiffs' case relies upon their own evidence of statements made by Gino Piovesan. In this, I have considered the words of Mr. Justice Rae in Kong v. Kong (1979), 14 B.C.L.R. 357 (S.C.) at p. 361: ...one must at least examine the evidence with the most careful scrutiny and indeed, at the outset, with some suspicion: see Re Garnett: Gandy v. Macaulay (1885), 31 Ch.D. 1 (C.A.). One should also give consideration to whether corroborative evidence of a material nature exists and, if it does not, then whether in the particular circumstances it is necessary in order to render the other evidence believable. Under the rule of practice referred to, it was not invariably necessary to have corroboration of the nature indicated before the evidence could be acted upon.... [8] Fourth are the legal principles applicable to the claim in trust, itself. The minority decision of Mr. Justice Dickson in Rathwell v. Rathwell, [1978] 2 S.C.R. 436 has been described as the lighthouse in this area of law. In it Mr. Justice Dickson discussed resulting trusts at pp. 451-52 in these words: Resulting trusts are as firmly grounded in the settlor's intent as are expressed trusts, but with this difference - that the intent is inferred or is presumed as a matter of law from the circumstances of the case. ... The presumption of a resulting trust is sometimes explained as the fact of contribution evidencing an agreement.... The courts are looking for a common intention manifested by acts or words that property is acquired as a trustee. [9] At p. 453 Mr. Justice Dickson described the border between resulting and constructive trust: Some of these situations may be analyzed as agreement or common intention situations. Such intention is generally presumed from a financial contribution. The doctrine of resulting trust applies. In others a common intention is clearly lacking and cannot be presumed. The doctrine of the resulting trust then cannot apply. It is here that we must turn to the doctrine of constructive trust. [10] On the subject of constructive trust, alone, in cases of unjust enrichment, Mr. Justice Dickson stated at p. 455: The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve a result consonant with good conscience. As a matter of principle, the court will not allow any many unjustly to appropriate to himself the value earned by the labours of another. That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason - such as a contract or disposition of law - for the enrichment. [11] In Pettkus v. Becker, [1980] 2 S.C.R. 834, Mr. Justice Dickson for the majority adopted the approach he had taken in Rathwell v. Rathwell, applying the constructive trust as a remedy for unjust enrichment, reiterating the three requirements of unjust enrichment: an enrichment; a corresponding deprivation; and an absence of any juristic reason for the enrichment. [12] More recently, in Peter v. Beblow, [1993] 1 S.C.R. 980 at p.990, Madam Justice McLachlin, writing for the majority, clarified that, in connection with the third requirement in proving unjust enrichment, "the fundamental concern in the legitimate expectation of the parties." [13] Peter v. Beblow, also established that the presumptive remedy for unjust enrichment is a monetary award, not a constructive trust. To obtain the proprietary remedy of a constructive trust, the plaintiff must establish both that monetary compensation is inadequate, and that there is a sufficient link between the unjust enrichment and the property in which the trust is claimed: Peter, at p. 997. [14] The Supreme Court of Canada further elucidated the remedy of constructive trust in Soulos v. Korkontzilas, [1997] 2 S.C.R. 217. There the court confirmed that the remedy of constructive trust extended beyond cases of unjust enrichment, noting at p. 230 that while the Canadian courts have developed the constructive trust as a remedy for unjust enrichment, the recent cases "should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized". Madam Justice McLachlin, speaking for the majority, said at pp. 236-37: It thus emerges that a constructive trust may be imposed where good conscience so requires. The inquiry into good conscience is informed by the situations where constructive trust have been recognized in the past. It is also informed by the dual reasons for which constructive trust have traditionally been imposed: to do justice between the parties and to maintain the integrity of institutions dependent on trust-like relationships. Finally, it is informed by the absence of an indication that a constructive trust would have an unfair or unjust effect on the defendant or third parties, matters which equity has always taken into account. ... The situations which the judge may consider in deciding whether good conscience requires imposition of a constructive trust may be seen as falling into two general categories. The first category concerns property obtained by a wrongful act of the defendant, notably breach of fiduciary obligation or breach of duty of loyalty. ... The second category concerns situations where the defendant has not acted wrongfully in obtaining the property, but where he would be unjustly enriched to the plaintiff's detriment by being permitted to keep the property for himself. [15] Thus, Soulos confirmed the availability of the constructive trust as a remedy for wrongful conduct, even in the absence of unjust enrichment. At p. 241, Madam Justice McLachlin identified four requirements that "generally should be satisfied" before the imposition of a constructive trust for wrongful conduct: (1) The defendant must have been under an equitable obligation, that is, an obligation of the type that courts of equity have enforced, in relation to the activities giving rise to the assets in his hands; (2) The assets in the hands of the defendant must be shown to have resulted from ... activities of the defendant in breach of his equitable obligation to the plaintiff; (3) The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties and; (4) There must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case; e.g., the interests of intervening creditors must be protected. [16] In all cases, the object of a resulting or a constructive trust is to assure a party an interest in real or personal property "whenever justice and good conscience require it": Hussey v. Palmer, [1972] 3 All E.R. 744 (C.A.) at p. 747. THE ISSUES [17] Based upon these authorities, the issues in this case are: 1. Is there proved, on a balance of probabilities, the implied or express intention of Gino Piovesan to share the property with his children, sufficient to create a resulting trust? 2. If not, has there been an unjust enrichment to Gino Piovesan, and thus to his executrix Rosa Piovesan, by: (a) enrichment to Gino Piovesan through contribution to the property's acquisition, preservation or maintenance; (b) a corresponding deprivation to Gino Piovesan's children; and (c) no juristic reason for the enrichment? 3. If there has been an unjust enrichment, are monetary damages adequate? 4. If there has been an unjust enrichment and monetary damages are not adequate, is there a link between the contribution that founds the action and the property in which the constructive trust is claimed, such that the remedy of constructive trust arises? In considering the appropriateness of the remedy of constructive trust, was there a reasonable expectation of the plaintiffs of obtaining an actual interest in the property, and should Gino Piovesan reasonably have known of that expectation? See Sorochan v. Sorochan, [1986] 2 S.C.R. 38 at pp. 52-53. 6. In the event that there was not an unjust enrichment, was there wrongful conduct on the part of Gino Piovesan or Rosa Piovesan such that good conscience requires imposition of a constructive trust, in accordance with the requirements set forth in Soulos v. Korkontzilas? In the context of this case, this involves the following questions: (a) did Gino or Rosa Piovesan have an equitable obligation in relation to activities giving rise to property in their hands; (b) was there a causal connection in the sense that the property in Gino or Rosa Piovesan's hands resulted from conduct in breach of equitable obligations to the plaintiffs; (c) is there a legitimate reason for the plaintiffs to seek a proprietary remedy; and (d) are there factors that would render imposition of a constructive trust unjust in all the circumstances of the case? [18] All considerations in assessing the existence of a resulting or constructive trust are made in the context of the requirements of justice and good conscience. THE CIRCUMSTANCES [19] The relevant history of the Piovesan family starts with the immigration to Canada of Gino and Vittoria Piovesan from Italy. Gino and Vittoria Piovesan had three children, Claudia, Lisa and Ernesto, the plaintiffs. Soon, by hard work and thrift, they purchased two lots as tenants in common at 7230 East Hastings Street, Burnaby, British Columbia, Lots 1 and 2 of District Lot 207. The family home was on Lot 2 and the adjacent Lot 1 was vacant. [20] On April 18, 1992, Vittoria Piovesan died after a lengthy illness. Before she died, Vittoria Piovesan told the eldest daughter, Claudia Friskie, that she and Gino Piovesan had made a joint will which appointed Claudia as executrix. Under the will she left her entire estate to Claudia. She expressed her non-testamentary wish to Claudia that her estate would be distributed in equal shares among the three children, making it clear that she expected that Gino Piovesan would also leave his interest in the property to the children when he died. At the time Gino Piovesan agreed that his wishes were the same as Vittoria's. [21] The will of Vittoria Piovesan was probated and an undivided one-half interest in the property passed to Claudia as executrix. Gino Piovesan held the other one-half interest. In addition to the property on which the family home was located, Vittoria Piovesan left about $40,000. These funds were deposited by Claudia Friskie as executrix into an estate bank account, and later, at the request of Gino Piovesan, into a joint savings account to which Gino Piovesan, Claudia Friskie and the plaintiff Lisa Godinho were sole signatories. [22] Some time later, Gino Piovesan withdrew the balance from the account which held the moneys from Vittoria Piovesan's estate, about $27,877.77. Claudia Piovesan testified and I accept that when she confronted Gino Piovesan with the withdrawal, he said that the monies would be restored to the children upon his death. [23] In May 1982, after Vittoria Piovesan's death, Gino Piovesan made a new will appointing Claudia Friskie as his executrix and directing that the net proceeds of his estate be divided equally among his children, the plaintiffs. This will was consistent with the expectation expressed by Vittoria Piovesan concerning the ultimate disposition of the assets she and Gino Piovesan had acquired during their marriage. [24] In September 1982, Gino Piovesan asked his daughter Claudia Friskie to change the form of the title, and the property was conveyed to Mr. Piovesan and the three plaintiffs as joint tenants on September 3, 1982. Claudia Friskie testified, and I accept, that she did not recall the solicitor explaining to her the meaning of joint tenant or tenant in common, and that her instructions to the solicitor were that all four names were to be on title. [25] Gino Piovesan met the defendant Rosa Piovesan in August 1982. She was a widow with one daughter, the defendant Rita Teffen who has not appeared in this action. Rosa Piovesan owned a house in Prince George and had bank deposits in the approximate amount of $240,000. Her estate was greater than was the estate of Gino Piovesan. [26] In November 1984 Rosa Piovesan moved to Vancouver, and took up residence in the family home of Gino Piovesan. Gino Piovesan and Rosa Piovesan intended to marry in April 1985. [27] In anticipation of the forthcoming marriage, a marriage agreement was prepared by Gino Piovesan's solicitor and was signed by Gino Piovesan and Rosa Piovesan prior to their marriage. Although Rosa Piovesan denies knowledge of the content of the agreement, I find that the agreement was prepared largely to give her assurance that should she die, her estate, which was larger than Gino Piovesan's, would benefit her child and not Mr. Piovesan or his children. I do not accept her evidence that the marriage agreement was signed by her in ignorance of its contents. [28] The marriage agreement provided, inter alia, that the parties would own any property as tenants in common, that they would hold the beneficial interest of any family residence they may come to own equally as tenants in common, and that the agreement did not prevent either party from making gifts to the other party. [29] In early 1985 Gino Piovesan asked the plaintiffs to transfer their interest in the property to him, on the promise that it would pass back to them on his death. In February 1985, a transfer of Lots 1 and 2 in favour of Gino Piovesan prepared by Gino Piovesan's solicitor, was signed by Gino Piovesan, Lisa Godinho and Claudia Friskie. This transfer was not dated or witnessed as to signature and the solicitor understood that it was not to be registered until she received advice from Lisa and Claudia permitting completion of the transaction. Ernesto Piovesan was not yet of the age of majority and hence the transfer did not include his interest. [30] Also in February 1985, Gino Piovesan made a new will appointing Claudia Friskie as his executrix and dividing the net proceeds of his estate equally among his children. He provided the original of this will to Claudia Friskie, telling her that as he had someone new in his life, he wanted matters to be updated so that his intentions were clear. [31] Gino and Rosa Piovesan were married on April 27, 1985. After the marriage, they resided in the Piovesan family home. Lisa Godinho (not yet married and known then as Lisa Piovesan) and Ernesto Piovesan resided with them. Title to the property was still in the name of Gino Piovesan and the three children as joint tenants. In her testimony, Rosa Piovesan denied being concerned with the state of the title but I accept the evidence of Claudia Friskie and Lisa Godinho that soon after their father married, he expressed to them concern about the state of the title, that he told them that Rosa Piovesan was uncomfortable living in a house owned in part by the children, that there were arguments in the Piovesan home between Gino Piovesan and Rosa Piovesan about the ownership of the property, and that he asked Claudia and Lisa to transfer the title in the home to him. [32] On May 8, 1985, Gino Piovesan made a new will confirming the terms of the February 1985 will. The May 1985 will stated that he had not made any provision in his will for Rosa Piovesan because they had agreed that each had sufficient assets to maintain themselves and that their respective families should benefit from their estates. Gino Piovesan gave the original of this will to Claudia Friskie. [33] Notwithstanding the May 1985 will, Claudia Friskie and Lisa Godinho had concerns that the transfers being held by their father's solicitor did not conform to the express wishes of their mother that the children retain her interest in the property. In May 1985 they withdrew their consent to the filing of the transfers which were being held by the solicitor. The February 1985 transfers were never registered. [34] On May 27, 1985, the solicitor for Gino Piovesan wrote asking the plaintiffs to re-transfer an undivided one- half interest in the property to Gino Piovesan, and threatened legal action. This request was consistent with Vittoria Piovesan's wishes and the children complied with the request. In June 1985 the joint tenancy respecting Lots 1 and 2 was severed and Mr. Piovesan received an undivided one-half interest as tenant in common. Claudia Friskie received an undivided one-eighth interest, as did Lisa Piovesan. Ernesto Piovesan, then an infant, retained a one-fourth interest in the property. [35] The issue of the title to the property was quiet from June 1985 until March 1987. By that time, Gino Piovesan and Rosa Piovesan had decided to build a new house on Lot 1 and to sell the house on Lot 2. They wished the plaintiffs' agreement to transfer their interest in Lot 1 to them. [36] Gino Piovesan arranged, through his solicitor, for a meeting on March 3, 1987. Who attended the meeting and what occurred is in dispute. Claudia Friskie testified that she, her sister Lisa, Gino Piovesan, Rosa Piovesan and the solicitor were present. She testified that at the meeting, the solicitor produced the original of the marriage agreement between Gino and Rosa Piovesan and read it. She contends that a copy of the May 1985 will was also produced. Her father, she says, stated that whatever assets he had acquired prior to his marriage to Rosa Piovesan would pass to the plaintiffs as his children on his death, that he and Rosa Piovesan were going to contribute equally to the cost of construction of the new house on Lot 1 and that he would own one-half of the new house and Rosa Piovesan would own one-half of the new house. Claudia Friskie testified that Rosa Piovesan stated that she had no wish to take any part of the property of Gino Piovesan and that she had sufficient assets of her own. Claudia Friskie testified that she was given the original of the marriage agreement as an assurance that the children could transfer their interest in the empty lot confident that their father's interest in the lot would return to them on his death. [37] Lisa Piovesan testified that the meeting was attended by herself, Claudia Friskie, Gino Piovesan, Rosa Piovesan and the solicitor. She testified that she and Claudia Friskie were shown the marriage agreement, that the solicitor read it, and that Gino and Rosa Piovesan said that they had agreed to these terms as they did not want to take each other's money. She testified that her father stated that he had worked hard all his life and wanted to make sure that what was his came back to his children. [38] Rosa Piovesan testified that she did not attend the meeting, and that she never met her husband's solicitor. She denied all knowledge of the events that transpired at the meeting. [39] The solicitor's file on work for Gino Piovesan is skeletal, and does not record the names of those who attended the 1987 meeting. The solicitor had no specific recollection of events and relied upon her file to remind her of the dealings. She did not recall meeting Rosa Piovesan, but said that it was possible she had done so. Her evidence neither contradicts nor confirms the description provided by Claudia Friskie and Lisa Godinho of her reading the marriage agreement and hearing the representations made by Gino Piovesan, although her file did not contain a copy of the signed marriage agreement which one would expect in the file of a careful solicitor. The solicitor's notes are inconsistent as to the intended transaction, indicating at one point that Gino Piovesan was buying a half interest in the property, and at another point that Gino Piovesan and Rosa Piovesan would have the property. She was clear that the transaction was only a transfer of the children's one-half interest in the property. She made no note that title was to be in joint tenancy. [40] I conclude that a meeting was held in the solicitor's office in 1987 prior to any transfer of the children's interest in the property, and that at least Claudia Friskie, Lisa Godinho, Gino Piovesan and the solicitor were in attendance. While Rosa Piovesan may have attended the meeting, I find that whether she did so is not proved on a balance of probabilities. I refer in particular to the solicitor's evidence that she did not recall seeing Rosa Piovesan prior to attendance at this trial. I find that at the meeting the solicitor read aloud the marriage agreement, that Claudia Friskie was given the original marriage agreement to hold, and that Gino Piovesan told Claudia Friskie and Lisa Godinho that he intended his children to inherit his interest in the property upon his death. [41] Claudia Friskie and Lisa Godinho testified, and I accept, that relying upon the representations made at the meeting in the solicitor's office and the documents produced which satisfied them that they would inherit their father's interest in the family property when he died, they agreed to convey their interest in Lot 1. [42] At about the same time as the meeting in the solicitor's office, Claudia Friskie and Gino Piovesan met with Ernesto Piovesan in the family home to discuss with him the proposed transfer of his interest. At this meeting, Ernesto Piovesan was shown the original of the marriage agreement and its importance was explained to him. I accept his evidence that Gino Piovesan assured him that the property was coming back to the children in the end, and that if anything happened to him the property would come to the children and Rosa would have her half. I accept the evidence of Ernesto Piovesan that he agreed to convey his interest in Lot 1 in reliance of the statements by his father and to make his father, who was being torn apart, happy, that he would not have sold without those assurances even at an enhanced price because his mother had worked hard for them. He did not have any understanding of the mechanism of transfer and whether it would be conveyed to his father, or to his father and Rosa Piovesan. [43] By letter dated March 21, 1987, Gino Piovesan and the plaintiffs confirmed an oral agreement to sell/purchase Lot 1 prior to March 19, 1987. The letter did not establish the purchase price and Rosa Piovesan's name is not present as purchaser. [44] At some time after deciding to sell their interest in Lot 1, the plaintiffs were told that they would be paid $40,000, which was one-half of the assessed value of Lot 1. Their evidence is, and I accept, that they did not negotiate the price and that they would not have sold their interest absent the representations made by Gino Piovesan as to the arrangements between himself and Rosa Piovesan. [45] The transfer signed by the children, dated March 23, 1987, transferred title in Lot 1 from Gino Piovesan as to an undivided one-half interest, Claudia Friskie as to an undivided one-eighth interest, Lisa Godinho as to an undivided one-eighth interest, and Ernesto Piovesan as to an undivided one-quarter interest, to Gino Piovesan and Rosa Piovesan as joint tenants. The plaintiffs each received their share of the $40,000 purchase price from the solicitor, the funds coming from Rosa Piovesan. [46] After the transfer of Lot 1, the new house was built. When it was finished, the old house on Lot 2 was sold for approximately $200,000 and the proceeds of sale were split one- half to Gino Piovesan and one-half to the three children, divided equally. In 1987, then, the plaintiffs received approximately $140,000 for their interest in Lots 1 and 2; Mr. Piovesan received about $100,000 for Lot 2 and retained an interest in Lot 1. [47] Ernesto provided assistance in the construction of the new house through contribution of his own labour and by arranging labour exchanges. He claims this work was worth approximately $30,000, and it forms the basis for an alternative claim on his behalf for compensation for unjust enrichment. No challenge is taken to the value placed upon the work by Ernesto Piovesan. Although Rosa Piovesan minimized the work done by Ernesto Piovesan, I am satisfied on a balance of probabilities that Ernesto Piovesan provided the assistance he claims. Of a total construction cost of about $110,000, $30,000 was contributed by Ernesto Piovesan. Ernesto Piovesan has testified that he would not have done as much work as he did but for the representations made by Gino Piovesan as to his children's interest in the house. I am also satisfied that Ernesto Piovesan performed a portion of this work out of familial duty, and not in expectation of recovery, i.e. he would have assisted his father but to a lesser extent if he had not expected to inherit an interest in the property. In 1993 and 1994 Ernesto Piovesan performed further work on the property, worth about $10,000. [48] In sharing the out of pocket costs of the new home with Gino Piovesan, Rosa Piovesan spent approximately $80,000 of her own funds. Thus, of the total costs of $150,000, ($110,000, plus $30,000 plus $10,000) Rosa Piovesan paid in the range of 50%. [49] On July 5, 1990, unbeknownst to the plaintiffs, Gino Piovesan and Rosa Piovesan made wills which nominated each other as their respective executors. Gino Piovesan's will made specific bequests of $50,000 to Ernesto Piovesan, $25,000 to Claudia Friskie and $25,000 to Lisa Godinho. The balance of his estate was conveyed to Rosa Piovesan or, should she predecease Gino, one-half to her daughter and one-half to his children. Rosa Piovesan's will was the mirror image of Gino Piovesan's. [50] In February 1993 Gino and Rosa Piovesan purchased a condominium as tenants in common. Gino Piovesan's interest in the condominium, worth about $100,000, formed the major portion of his estate when he died. [51] In March 1993, Rosa Piovesan gave $20,000 to Claudia Friskie, at the request of Gino Piovesan, to help Claudia Friskie purchase a condominium in which to reside. [52] On November 13, 1995, Gino Piovesan died. Upon his death the plaintiffs discovered that the house was owned in joint tenancy, and that they acquired no interest in it. DISCUSSION FACTUAL ISSUES [53] Two factual issues were addressed by counsel, Rosa Piovesan's knowledge of the representations made by Gino Piovesan to his children when they transferred their interest in the property in 1987, and the children's understanding of the term "joint tenants" that appeared on the transfer documents they signed in 1987. [54] In assessing these issues I have considered the credibility of the witnesses who gave evidence on these matters. [55] Rosa Piovesan's evidence was replete with internal contradictions, and contradicted both the testimony of other witnesses and documents before the court. Her counsel sought to explain the inconsistencies and apparent errors in her testimony on the basis that her skills in English were poor and she had both misunderstood questions and made errors in her answers as a result of English being her second language. [56] It is true that Rosa Piovesan presented in the court room as having difficulty with the English language. However, counsel took care to ensure that she understood and was able to answer the questions. Repeatedly, questions and answers were put to her to ensure her evidence was as she wished to relate to the court. She did not generally indicate a lack of understanding or of ability to express herself, although on occasion she did asked for clarification, indicating that she knew she was entitled to seek clarification. Nor did she seek an interpreter. I am satisfied that at least the vast majority of the inconsistencies in Rosa Piovesan's testimony flowed not from her difficulty with English, but rather from her willingness to say whatever was convenient to her at the time. On more than one occasion she admitted to giving untruthful answers, and she admitted to giving untruthful answers in the courtroom. I found that her evidence was not reliable and that on critical issues I could not base a finding of fact on her evidence alone. [57] The evidence of Claudia Friskie, Lisa Godinho and Ernesto Piovesan was more forthright, and I am satisfied that they sought to relate the truth to the court. However, there were several of instances in which I am not satisfied that their memories provided accurate information. An example is Claudia Friskie's insistence that Rosa Piovesan was present at the 1987 meeting in the solicitor's office prior to the transfer. [58] The solicitor's evidence, which might be expected to shed some certainty in uncertain areas, is also replete with difficulties. This is primarily because she had inconsistent practice habits. For example, she could not testify that she had explained the term "joint tenant" to those gathered at the meeting because her practice was sometimes to leave that explanation to her legal assistant. Nor could she state who was present with certainty because she did not invariably take notes that included a list of those present. [59] Based upon all of the evidence, and my assessment of the witnesses' credibility, I find that it is not proved on a balance of probabilities that Rosa Piovesan attended the meeting in 1987 at the solicitor's office at which the terms of the marriage agreement were read. However, I find the state of title had been an issue between herself and her husband, and that she knew that at times the state of title had been an issue between her husband and his children. I find that Rosa Piovesan was aware of the commitments she and Gino Piovesan had made to each other in the marriage agreement as to the disposition of their estates. I find it proved on a balance of probabilities that she knew Gino Piovesan had told his children he intended them to inherit his property. I find it is more likely than not that Rosa Piovesan knew the expectation of the children to inherit their father's interest in the house was the basis for their agreement to transfer Lot 1. [60] Did the plaintiffs, or any of them, understand the import of the term "joint tenant" on the transfer of Lot 1 or realize that the document could put the property beyond their father's testamentary reach? On behalf of Rosa Piovesan I am referred to the 1982 transfer to Gino Piovesan and the three children as joint tenants as indicating some awareness of the difference between the terms "joint tenant" and "tenants in common". There is no evidence before the court that the meaning of the term "joint tenant" was explained to Claudia Friskie in 1982 when she dealt with the title as executrix in the manner requested by her father. Nor is there evidence that in 1985, or 1987, the term was ever explained. The evidence of the children is to the effect that they did not know that the transfer document in 1987 meant that they would not take an interest in the property when their father died, and that they trusted their father in this matter. [61] I find that at the time the transfer to Gino Piovesan and Rosa Piovesan was signed by the children, the children did not intend to transfer the title in a fashion that precluded their taking the interest in the property promised by their father, and they relied upon his representations that they would in time inherit an interest in the house. I find that they did not understand that the term "joint tenant" on the document, if they noticed it, would remove the property from their father's testamentary reach. APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS 1. Is There A Resulting Trust? [62] Both the plaintiffs and the defendant approached the case primarily as one of constructive trust, although the pleadings raise the issue of resulting trust. In argument the plaintiffs contended that the case sounded in resulting trust as well as constructive trust. [63] The issue here is whether the implied or express intention of Gino Piovesan to share the property with his children is proved on a balance of probabilities and is sufficient to create a resulting trust. [64] In my view, this necessary intention of Gino Piovesan is proved on at balance of probabilities. I am satisfied that he persuaded his children to relinquish their title to the property that they had inherited from their mother by promising them they would acquire his interest in the property upon his death and that he intended that his promises would be kept. The representations made by him in 1987 were not promises of a fleeting nature. They were expressions of the same intent he expressed in 1985 when he gave Claudia Friskie a copy of his will, and they are the same intentions expressed in the marriage agreement made in 1985 which he brought to his children's attention in 1987. They were consistent with the manner in which he and Rosa Piovesan had, until then, organized their business affairs. [65] In this, I have considered that the marriage agreement and 1985 will, and the fact they were given to Claudia Friskie to hold, are all evidence of the nature described in Kong, supra, sufficient to displace the suspicion which must necessarily be brought to this claim. [66] Although Gino Piovesan may have changed his intention after the children transferred their interest in Lot 1, the critical time for purposes of this discussion is the moment that the children transferred the property, acting upon his representations. At that moment, assuming he intended to share his property with his children, his interest in the property became impressed with a resulting trust in favour of the children. I have concluded that once the transfer in 1987 was effected, the property interest of Gino Piovesan was impressed with a trust in favour of the children. 2. Was there an unjust enrichment to Gino Piovesan? [67] If I am wrong in concluding that Gino Piovesan intended his children to take his interest in the property upon his death, but rather the transferred title to him and Rosa Piovesan as joint tenants accurately reflected his intention that the property would go to her upon his death, then I must consider this case from the perspective of constructive trust, as if there were no resulting trust. [68] The most common basis for a constructive trust is unjust enrichment. Here the issues are: (a) has there been enrichment to Gino Piovesan through contribution to the property's acquisition, preservation or maintenance; (b) has there been a corresponding deprivation to Gino Piovesan's children; and (c) is there no juristic reason for the enrichment? [69] I conclude that unjust enrichment is not established on the plaintiffs' primary claim (leaving aside Ernesto's alternative claim for his labour) because the second condition above is not met. In my view, there has not been a deprivation to the plaintiffs of the nature required to constitute unjust enrichment. The plaintiffs were paid at market value for the interest in Lot 1 and received their one-half of the sale price for Lot 2. The deprivation they speak of is loss of their expectation that they would inherit their father's interest in the property. Relinquishment of this expectation, in my view, is not deprivation sufficient to create an unjust enrichment. 3. If there was not a resulting trust, was there wrongful conduct on the part of Gino Piovesan or Rosa Piovesan such that good conscience requires imposition of a constructive trust? [70] I have found that Gino Piovesan intended to share his property with his children at the time they irrevocably transferred their interest in the property, and on that basis I have found that Gino Piovesan's property became impressed with a resulting trust. However, if he did not intend to leave his property to his children when the transfers were signed but rather the joint tenancy accurately reflected his intentions, then the representations of Gino Piovesan upon which he persuaded his children to transfer the property would be fraudulent, given that, as I have found, Gino Piovesan knew that his children were only relinquishing their interest in the property upon his commitment that they would share in the property when he died. [71] In my view good conscience would require imposition of a constructive trust as a remedy for Gino Piovesan's wrongful conduct, provided that the four conditions established by Soulos v. Korkontzilas are met. In this case, this requires: (a) an equitable obligation in relation to Gino Piovesan's wrongful conduct; (b) a causal link between Gino Piovesan's wrongful conduct and his acquisition of property; (c) a legitimate reason for the plaintiffs to seek a proprietary remedy; and (d) the absence of factors that would render the imposition of a constructive trust unjust. [72] The first and second conditions are met here. Equity does not condone a fraud and will grant a remedy when it is appropriate to do so. If Gino Piovesan did not intend to keep his word when he persuaded the children to transfer their title in 1987, the children's transfer to Gino and Rosa Piovesan of their interest in Lot 1 on March 23, 1987, would have been done as a result of Gino Piovesan's fraud. In that situation, that fraud gave rise to an obligation of the type that a court of equity will enforce. [73] As for the third condition, I find that the plaintiffs have a legitimate reason to seek a proprietary remedy, since a constructive trust would have the effect of severing the joint tenancy of Gino and Rosa Piovesan at equity by breaking their unity of interest in Lot 1. This would afford the plaintiffs a remedy against Rosa Piovesan despite her right of survivorship as a joint tenant, for legal title does not prevent the plaintiffs from claiming an interest in trust: Pacific Savings and Mortgage Corp. v. Can-Corp Development Ltd. (1982), 37 B.C.L.R. 42 (C.A.). Without a constructive trust, the plaintiffs might otherwise be denied any remedy at all. [74] Finally, I have found that Rosa Piovesan knew of the commitments Gino Piovesan was making to his children. This finding answers any concerns over the fairness of enforcing a trust obligation in the circumstances. Rosa Piovesan will continue to hold a one-half interest in the property, proportionate to her investment, and the result will be consistent with the intentions expressed between Gino and Rosa Piovesan in the marriage agreement. In my view there are no factors that would render the imposition of a constructive trust unjust in all the circumstances of the case. 4. Ernesto's Alternative Claim [75] I have concluded that Gino Piovesan knew that the children were only relinquishing their interest in the property upon his commitment that they would share in the property when he died, and that in these circumstances a resulting trust applies. However, even if this was not his intention, then Gino Piovesan obtained the transfer under false promise, in which case I have found that the remedy of constructive trust would be appropriate. In both cases, Rosa Piovesan acquired title to Lot 1 subject to the trust obligation created by Gino Piovesan. [76] Given these conclusions it is unnecessary for me to address Ernesto Piovesan's claim in unjust enrichment, advanced in the alternative, for compensation for the labour he contributed to the construction of the house. REMEDY [77] The plaintiffs claim a one-half interest in Lot 1. They have, however, already received $100,000 by way of bequest under the will of their father. That $100,000 was not part of the assets which Gino Piovesan committed to leave to them when the transfers were signed in 1987. [78] The question then arises whether the proper remedy as against Rosa Piovesan is a declaration of trust in the property, or a monetary judgment. Recognizing that even if the plaintiffs' former expectation was that they would obtain the property held by their mother, a monetary award is now more practical in circumstances where one-half of the property is held by Rosa Piovesan. [79] The plaintiffs ask for judgment in the amount of $100,000, which is roughly the difference between one-half of the value of the property on the date of Mr. Piovesan's death ($430,000) and the $100,000 received as a bequest. [80] In my view, a monetary judgment is appropriate in these circumstances and the sum of $100,000 fairly reflects the value of the property on Mr. Piovesan's death, the cash bequest, and the expectations of the plaintiffs following their father's representations. It is fair to Rosa Piovesan in leaving with her the monetary value of Gino Piovesan's share of the property that they bought together as a couple. [81] There shall be judgment against Rosa Piovesan in the amount of $100,000 to the plaintiffs. Costs shall be in the cause. "M.E. SAUNDERS J."