IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Walker v. Brown,

 

2013 BCSC 204

Date: 20130208

Docket: E112149

Registry: Vancouver

Between:

Gordon Delbert Walker

Claimant

And

Valerie Fortune Brown

Respondent

Before: The Honourable Mr. Justice Wong

Reasons for Judgment

The Claimant, Gordon Walker:

In Person

Counsel for the Respondent:

J. A. W. Schuman, QC

J. Desilets

Place and Dates of Trial:

Vancouver, B.C.

November 19 - 30, 2012

Place and Date of Judgment:

Vancouver, B.C.

February 8, 2013


 

[1]             “The Book of Life begins with a man and a woman in a garden and it ends with Revelations”, Oscar Wilde, 1856 - 1900.

Introduction

[2]             On June 1997, 50 year old bachelor, Gordon Delbert Walker, the Claimant, met Valerie Fortune Brown, the Respondent, then a 71 year old wealthy widow. They developed a fast friendship and by September 2, 1997 Mr. Walker was invited to move into her home. They formed a domestic live in relationship which lasted a little over 14 years until she ejected him from her home on January 1, 2012.

[3]             Throughout their time together the Claimant never had outside employment but puttered around the house. The Respondent paid all of their living expenses, clothed him and employed housecleaners and gardeners for their home. They travelled and holidayed extensively all over the world - 60 trips - paid for by Ms. Brown. She also provided him with pocket money: initially $400 per month and latterly $500 per month.

[4]             Although they had separate bedrooms in their home, they shared hotel and ship cabin rooms with twin beds on their travels. They went to social and family events together and were perceived by their friends to be a couple.

[5]             They never married.

[6]             Now at age 66, the Claimant seeks spousal maintenance on the basis of a long term “marriage like relationship” with the Respondent under the Family Relations Act, R.S.B.C. 1996, c. 128. He seeks an amount consistent with the standard of living he previously enjoyed.

[7]             Ms. Brown, now 86 years, disputes his claim and says the Claimant was merely a platonic live-in friend, serving as a domestic male security escort, travelling companion and heavy luggage porter.

[8]             This trial involved two main issues:

1.     Was Mr. Walker a “spouse” within the meaning of sec. 1(1)(b) of the Family Relations Act?

2.     If found to be a spouse, is he entitled to financial support?

[9]             I have concluded the answers to both questions are yes.

[10]         These are my reasons.

The Background

[11]         The Respondent Valerie Fortune Brown was one of two children in a family raised in England. Her English parents provided a comfortable standard of living. She was educated in a girls private school. She later became a world class figure skating champion, performed professionally in ice follies and was also employed as a model for art sculptures.

[12]         She was first married to a Mr. Mant, an electrical engineer in Montreal, had 5 children with him and later divorced him, taking the two youngest children with her but leaving the three older ones with Mr. Mant. They remained on amiable terms until Mr. Mant’s death shortly after his 90th birthday.

[13]         Her second husband was James Brown, a successful chartered accountant and businessman in Vancouver. It was a second marriage for both of them. They had no children from this union. Mr. Brown retired in 1975 and the Browns moved to Sechelt, living on a substantial piece of waterside property with a large house. During their retirement, they travelled frequently. The Browns were married for 24 years when Mr. Brown died in 1994. The Respondent was left with her husband’s estate which consisted of an investment portfolio of assorted stocks and bonds held in a private holding company called Yakoun Investments (Yakoun). Yakoun’s holdings together with a shareholder loan were worth over $5,000,000. Ms. Brown also inherited a retirement income fund, then worth 1.3 million dollars. Her home on Yacht Road, named Val Paradiseo by the Browns, had an appraised value of 1.6 million dollars.

[14]         After her husband’s death, the Respondent lived alone in her large house.

[15]         In 1995, intending to downsize, she listed her house for sale. It was unable to sell for two years and remained listed for sale when the Respondent met the Claimant on June 2, 1997.

[16]         Previously in April 1997 the Respondent, after consulting her investment advisors and accountant, began to initiate an estate freeze of Yakoun Investments with a family trust for the benefit of her five adult children. This freeze was finally completed in March 1998.

[17]         What the estate freeze provided was that Ms. Brown’s interest in Yakoun was in the form of 1,000 preferred shares frozen in value as of April 30, 1997 with each share at a fixed value of $3,441.40. This amounted to $3,441,400.

[18]         The rest of Yakoun’s common shares were held as a family trust for her five children. These common shares could eventually appreciate in value. The Respondent also held a shareholders loan in Yakoun worth $900,000 accumulated by her husband prior to his death.

[19]         The Respondent lived primarily on draws from her Registered Retirement Income Fund account, which averaged about a $137,000 a year. She could also access major funds by periodic redemption of her preferred shares with its proceeds flowing into her shareholder loan account. Her annual taxable income from 1997 to 2011 varied from $145,000 to over $500,000 a year. Over that same time period, she withdrew from her Registered Retirement Income Fund account a total of $1,664,785 to cover her living expenses.

[20]         Her investment advisor opines that her Registered Retirement Income Fund account, even with investment appreciation, will probably be depleted by her annual draws in another 8 to 9 years, at which time she will be 95 years of age.

[21]         Ms. Brown is clearly a very wealthy woman with accessible funds.

[22]         Gordon Walker is the eldest of 6 brothers and 3 sisters growing up in Ontario. He has a grade 12 education. Over the years he was a bookkeeper, clerk, dispatcher and sales executive in the trucking business. He was also involved in sales for the packaging business. He eventually moved west, first to Calgary and then to the Sunshine Coast of British Columbia. In the last two locations, he lived on welfare.

[23]         On June 2, 1997 working part time at a federal polling station in Sechelt, Mr. Walker met Ms. Brown, who was a volunteer scrutineer for the Conservative Party. A few days later the Respondent offered to help circulate the Claimant’s work resume, took him to lunch, bought him food hampers, purchased a cell phone and a $120 pen for him.

[24]         She also took him for dinners. They began dating, and Mr. Walker said they eventually became lovers. She invited him to accompany her for trips to Vancouver and to the Calgary Stampede. She paid all the travelling expenses. They lived at separate residences.

[25]         In early September, 1997, because the Claimant had to vacate a suite rented from his brother, Ms. Brown suggested they live together. She also wished to downsize and list her home again for sale. She asked the Claimant to help her find a suitable smaller home for both of them to live. She gave him a $250,000 cheque to effect a purchase. A recently built home was found on Geer Road and purchased for $236,000. Mr. Walker kept the $14,000 balance in his personal bank account. Ms. Brown’s home on Yacht Road could not sell because of its expensive price and on September 2, 1997, she suggested that Mr. Walker live with her at Yacht Road. The Claimant said that they were not only lovers, but he became financially dependent upon her to provide funds. She also suggested that the Geer Road home now be sold.

[26]         Mr. Walker had never moved into Geer Road. He sold the property for $229,000, a loss of $7,000. He put the sale proceeds into his bank account and informed the Respondent. He said she told him that was a gift and he could do what he wished with it; it was his money. Mr. Walker then used those monies as his thereafter.

[27]         The Claimant needed a new watch. Ms. Brown purchased and gave him a $10,000 Rolex watch.

[28]         Eleven months later in August 1998, after returning from a visit with her five children living in eastern Canada, the Respondent presented him with a document entitled “Residency Agreement” of which the content read:

WHERE AS:

A.     Valerie is retired and is aged 72 years and is financially independent. She is single and has five children, none of whom are dependent upon her.

B.     Gordon is currently unemployed and is aged 51 years and is financially independent. He is single and has no dependents.

C.    Gordon commenced residing in Valerie’s home at Yacht Road, Sechelt, British Columbia on September 1, 1997.

D.    Valerie and Gordon are friends and travelling companions and do not have a relationship which is spousal in nature.

E.     Both Valerie and Gordon have their own individual net worths and each of them is financially independent of the other.

F.     Neither Valerie nor Gordon have made any contributions, either financial, legal or equitable to the net worths or underlying assets of the other.

G.    By this Agreement, both Valerie and Gordon intend to define the nature of their relationship and their mutual obligations thereunder.

                        NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and of the mutual covenants hereinafter contained, the parties hereto agree as follows:

1.     Relationship.         Both parties acknowledge that their relationship is that of friends and travelling companions and that their relationship is not spousal in nature.

2.     Valerie’s Property.             Gordon acknowledges that the 5236 Yacht Road, Sechelt, British Columbia (“Valerie’s Home”) and all other assets owned by Valerie are Valerie’s sole property and that he has no interest, legal or equitable, whether by constructive trust or otherwise, in Valerie’s Home or any of her other property.

3.     Gordon’s Property.            Valerie acknowledges that all assets owned by Gordon are Gordon’s sole property and that she has no interest, legal or equitable, whether by constructive trust or otherwise, in any of Gordon’s property.

4.     Residence.            Valerie agrees that Gordon may reside in Valerie’s Home until Valerie, upon 30 days’ notice, requests his departure.

5.     Room and Board.  Valerie agrees that Gordon is not obligated to pay room and board during the period he resides in Valerie’s Home, nor is he required to contribute financially to the upkeep of the property and grounds.

6.     Employment.         Valerie acknowledges that Gordon may seek and accept employment or training.

7.     Mutual Acknowledgment.  Valerie and Gordon separately acknowledge that:

(a)             their relationship is not spousal in nature;

(b)             neither party intends to share legal or beneficial ownership of his or her property, owned before or acquired after the making of this Agreement; and

(c)             neither party will rely on the oral expression, or conduct that may suggest the expression, of the intention by one party to share his or her separate property or a portion of that property with the other, except in accordance with the terms of this Agreement.

[29]         Ms. Brown asked him to sign it. Mr. Walker refused. He said that she started to cry and said “if you love me, you’ll sign it”. To placate her, the Claimant said he signed it. He also said two days later Ms. Brown told him she was ashamed that she forced him to sign it; and she would just rip it up and he would not see it again. He said he never saw it again for 15 years until at this trial.

[30]         After two years of living together the Claimant said the Respondent to show her expression of love told him she would refurbish their home from “top to bottom”. Extensive renovations were undertaken to renovate the master bedroom, to add a guesthouse to the property and to replace furniture.

[31]         The Respondent delegated the renovation task to Mr. Walker and gave him funds to pay for the work. At one point, Mr. Walker asked Ms. Brown what would happen to the project if she died before it was completed. She decided to set up a $300,000 line of credit with her financial advisor to cover the costs to completion. In addition on July 23, 1999, she made the Claimant a joint tenant on her Yacht Road properties.

[32]         As mentioned previously, they vacationed extensively throughout the world. She also opened a number of joint bank accounts to cover various contingencies.

[33]         Besides giving him a monthly allowance the Respondent also gave him free use of her Visa and American Express credit cards. She reviewed those statements monthly, sometimes asked him to reimburse her for certain items he incurred, but most times she paid for the majority of purchases he made.

[34]         Ms. Brown also purchased expensive cars: a new Lexus SUV for the Respondent’s use and a Jaguar Sedan for her own use.

[35]         At social events and during their holiday travels, their acquaintances and friends perceived them to be husband and wife.

[36]         Throughout their 14 years together, they enjoyed a lavish lifestyle paid by Ms. Brown. They lavished each other with expensive gifts (though ultimately paid for by the Respondent).

[37]         Photographs taken of them during their travels show them in affectionate poses: holding hands; hugging each other or seated snuggled close, with her hand placed on his thigh.

[38]         Ms. Brown also wrote numerous notes of affection to Mr. Walker.

[39]         July 2, 1997, she wrote:

“Thank you for helping and generously sharing. Thanks for the fun, all the joy and the caring. Thank you for laughter, for friendship and giving. These are the gifts that make my life so worth living”.

“Gordon, you are the “sunflowers” in my life. Loving you so”.

“To you, the love of my life. Love and total trust mean only one thing to me and that is - Gordon, and I thought I would never love or trust ever again. Yet without them both, there can be no true happiness. Therefore you hold in your possession, that which I value the most to give to you”.

… “Love you, love you and please make the days go faster”.

[40]         On June 2, 1999 she wrote:

“Happy happy happy I met Gordon day”.

“I knew there had to be one good thing about politics, and there was. I love you”.

[41]         On June 22, 1999, she wrote:

… “Even though you may have thought I took it all for granted, because, in my despair in having to leave you, I totally forgot to thank you and appreciate all you do for me. Believe me, I notice everything you do and so grateful for it all. I’m just not use to having a wonderful person to love, it is all new to me. Not only does money buy happiness, but there is a heaven on earth, and you are it. Look after your sweet self for me”.

[42]         Another read:

“Seventh happy anniversary for September 2, 2004.

To the one I love and the only one I have ever loved. From Boo.”

[43]         “Boo”, “Angel”, and “Darling” were terms of endearment used by Mr. Walker to Ms. Brown in the presence of others.

[44]         Ms. Brown even underwent cosmetic face lift surgery to remove facial wrinkles and furrow on her forehead. This was done despite Mr. Walker’s concern and objection, reassuring her that she looked beautiful to him.

Marriage-like Relationship?

The Law

[45]         Under sec. 1(1)(b) of the Family Relations Act unmarried persons can be regarded as spouses if they live in a marriage-like relationship in excess of two years.

[46]         The law in British Columbia with respect to determining whether parties satisfy the definition of spouse under Section 1(1) of the Family Relations Act, R.S.B.C. 1996, has been subject to several changes over the years.

[47]         In 1996 the British Columbia Court of Appeal released Gostlin v. Kergin, [1986] B.C.J. No. 365. The decision represents the starting point for the current state of the law on the issue of what defines a spouse in British Columbia family law.

[48]         In Gostlin, supra, the court established a two-prong test, consisting of a subjective level of analysis to be followed - if necessary - by an objective level. Mr. Justice Lambert, writing for the Court, stated:

In deciding whether a couple lived together as husband and wife, I would be guided by the scheme and intention of the Act itself. The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s. 57 as are voluntarily undertaken by a married couple. So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 27. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.

12        Of course, in the particular circumstance of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

13        All those questions, and no doubt others, may properly be considered as tending to show whether a couple who lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

[49]         In 1998, the Court of Appeal changed the approach set down in Gostlin, supra, in the decision of Takacs v. Gallo (1998), 157 DLR (4th) 623. In considering the second part of the Gostlin test, namely an analysis of objective factors, Madam Justice Huddart adopted the seven part test which is a comprehensive list of criteria from the Ontario case of Molodowich v. Penttinen, 1980 Carswell Ont 274:

(a)             Shelter:

(i)               Did the parties live under the same roof?

(ii)              What were the sleeping arrangements?

(iii)            Did anyone else occupy or share the available accommodations?

(b)             Sexual and Personal Behavior

(i)               Did the parties have sexual relations? If not, why not?

(ii)              Did they maintain an attitude of fidelity to each other?

(iii)            What were their feelings towards each other?

(iv)            Did they communicate on a personal level?

(v)             Did they eat their meals together?

(vi)            What, if anything, did they do to assist each other with problems or during illness?

(vii)           Did they buy gifts for each other on special occasions?

(c)             Services:

What was the conduct and habit of the parties in relation to:

(i)               preparation of meals;

(ii)              washing and mending clothes;

(iii)            shopping;

(iv)            household maintenance; and

(v)             any other domestic services?

(d)             Social:

(i)               Did they participate together or separately in neighborhood and community activities?

(ii)              What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

(e)             Societal

What was the attitude and conduct of the community toward each of them and as a couple?

(f)               Support (economic):

(i)               What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?

(ii)              What were the arrangements concerning the acquisition and ownership of property?

(iii)            Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(g)             Children:

What was the attitude and conduct of the parties concerning children?

[emphasis added]

[50]         Her Ladyship described the foregoing as organizing questions which permit a trial judge to view the relationship as a whole in order to determine whether the parties have lived together as spouses.

[51]         However, it is important to note that the decision of Huddart J.A. was the dissenting opinion in Takacs. The majority decision of the Court, provided by Newbury J.A. expressly cautions against focusing on an objective assessment:

In both Gostlin and Fitton, the question of whether persons were living together as spouses notwithstanding that they were not legally married involved the court in an examination of their intentions and not simply an objective assessment of whether their financial and living arrangements were “intertwined”. If the Legislature had intended the latter, it would have been an easy matter to so state. Objective factors will of course be relevant to determine the parties’ intentions as Lambert J.A. noted in Gostlin but those factors will rarely be determinative in and of themselves. Many combinations of people may live together and meet many of the criteria set forth in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), but without intending or in fact entering the kind of psychological and emotional union that one associates with marriage.

[52]         The majority also stated at para. 53

“By the same token, of course, subjective or conscious intentions may be overtaken by conduct such that while a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such.”

[53]         In the recent Court of Appeal decision of Austin v. Goerz (2007), 74 B.C.L.R. (4th) 39, Frankel J.A. speaking for the Court canvassed numerous authorities which considered the nature of a marriage-like relationship in relation to the definition of “spouse”. After concluding that financial dependency by one spouse on the other was not a pre-requisite of a marriage-like relationship. He endorsed a holistic approach to the issue and stated at para. 58:

            It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like.  This is because equally there is no checklist of characteristics that will invariably be found in all marriages.  In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:

[10]      Spousal relationships are many and varied.  Individuals in spousal relationships, whether they are married or not, structure their relationships differently.  In some relationships there is a complete blending of finances and property - in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input.  For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship.  Some spouses do not share the same bed.  There may be a variety of reasons for this such as health or personal choice.  Some people are affectionate and demonstrative.  They show their feelings for their “spouse” by holding hands, touching and kissing in public.  Other individuals are not demonstrative and do not engage in public displays of affection.  Some “spouses” do everything together - others do nothing together.  Some “spouses” vacation together and some spend their holidays apart.  Some “spouses” have children - others do not.  It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine.  With married couples, the relationship is easy to establish.  The marriage ceremony is a public declaration of their commitment and intent.  Relationships outside marriage are much more difficult to ascertain.  Rarely is there any type of “public” declaration of intent.  Often people begin cohabiting with little forethought or planning.  Their motivation is often nothing more than wanting to “be together”.  Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status.  Some individuals have simply given no thought as to how their relationship would operate.  Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together.  Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Emphasis added]

Analysis

[54]         Counsel for the Respondent conceded that while there may be objective factors that indicate a marriage-like relationship, taken as a whole Ms. Brown’s evidence demonstrates she did not form the necessary intention for the psychological and emotional union necessary for a marriage-like relationship.

[55]         She did not deny that she felt affection for Mr. Walker, particularly in the first 2 years. Because of their age difference she described their relationship as almost a mother to a son. She said she appreciated his company and the security it provided.

[56]         The Respondent was adamant that she and Mr. Walker were never lovers or sexually intimate, though she conceded when confronted with the myriad objective circumstances supportive of a spousal like relationship that she and Mr. Walker had a “strange partnership”.

[57]         Mr. Walker said that within 6 weeks of their first meeting on June 2, 1997 they were engaged in an intimate physical relationship. They had separate bedrooms in their home because the Respondent snored and was in the habit of frequently waking in the night to use the bathroom. She preferred the downstairs master bedroom because it had a larger wardrobe closet and frequent climbing of stairs was troublesome for her hips.

[58]         Mr. Walker occupied the upstairs bedroom. He said that their episodes of intimacy involved a mutual game. He would attend at her bedroom door and knock. She would say “who is it?” He would respond with “it is the man from upstairs”. She would giggle or laugh, he would enter her room and stay part of the night.

[59]         On their holidays, Ms. Brown admitted she shared bedrooms with twin beds with Mr. Walker. When questioned why they did not have separate rooms, her answer was that she regarded him as a gentleman. She trusted him implicitly and they would dress and undress discreetly with cover or in the bathroom. She also said she was “basically frugal” - seemingly inconsistent with her lavish lifestyle spending.

[60]         The parties’ personality and character complimented each other. Ms. Brown had quiet British reserve with gracious manners. Mr. Walker had rugged physical features, he was affable, frank, outspoken in manner but socially courteous. His speech was generally bombastic. I think Ms. Brown initially found him an amusing and entertaining gentleman companion and eventually invited Mr. Walker to live with her.

[61]         In their 14 year relationship, the Claimant regarded himself as a “kept man” and a “trophy husband”. As their relationship developed, it became apparent that Mr. Walker was also mercurial in his moods. He became more assertive and demanding, especially in financial matters. He pestered Ms. Brown to give him partial ownership of her assets and to confer on him a power of attorney. He frequently asked her to marry him but she always refused.

[62]         Finally she became disillusioned with Mr. Walker. She was concerned that the Claimant was abusing his credit card use to obtain large cash advances for personal use and secretively withdrawing funds from their joint bank accounts. She felt she could no longer trust him. She was also concerned with protecting her adult children’s potential inheritance, if Mr. Walker continued to aggressively press for a greater share of her holdings.

[63]         She said the Claimant not only became more insistent in his demands, but he also shouted at her. Mr. Walker’s response was that he had to raise his voice because she was becoming increasingly hard of hearing.

[64]         Much time was spent in this trial as to whether the parties were in fact sexually intimate. They were in polar opposites on this issue.

[65]         It is not necessarily to make any express finding, as there is ample other evidence to establish Mr. Walker’s claims. Overall, I found Ms. Brown’s position on this issue somewhat disingenuous.

[66]         I find the following to be indicia of a marriage-like relationship:

1.     The parties lived together for 14 years (September, 1997 to January 1, 2012) in Ms. Brown’s home.

2.     They had their meals together.

3.     Ms. Brown gifted Mr. Walker one half equity of her 1.6 million dollar home by registering him as a joint tenant.

4.     Throughout the 14 years they were together, Mr. Walker was never gainfully employed. Ms. Brown paid for all the household expenses. She provided for all his financial needs either by way of cash or by allowing him use of her credit cards. Mr. Walker was economically dependent on Ms. Brown.

5.     Mr. Walker was given free rein use of the home and delegated the responsibility and task of arranging extensive renovations to the home. Joint bank accounts and a large line of credit were created by Ms. Brown to pay specifically for these renovations.

6.     The couple socialized with their respective families. They entertained friends in their home as a couple.

7.     To friends and acquaintances Mr. Walker referred to Ms. Brown as his wife. These persons understandably perceived them as a couple. Ms. Brown never corrected Mr. Walker’s reference to her as his wife.

8.     The Claimant addressed the Respondent in the presence of others in endearing and familiar nicknames.

9.     Ms. Brown wrote many love notes to Mr. Walker that seemed to be beyond platonic friendship.

10. On holidays and trips (over 60) they shared the same bedroom.

11. Although there is an early residency agreement between the parties to protect Ms. Brown’s separate assets against potential unjust enrichment claims by Mr. Walker, the agreement cannot override spousal maintenance benefits conferred by statute if the qualifying conditions of a marriage-like relationship is established.

12. The parties entered into a relationship with indefinite duration. Their familiarity with each other and all of the above circumstances point to an inescapable inference that they together formed the common intention for  psychological and emotional union necessary for a marriage-like relationship; I so find.

Spousal Support

[67]         Mr. Walker has been a kept man throughout his 14 year relationship with Ms. Brown. He had no gainful employment nor was he encouraged to seek it. All his living expenses were provided for him by the Respondent, including extras and luxuries. He became economically dependent. Prior to this relationship, he was living either on welfare or periodic employment. Now at 66 years of age, with a long time economic dependency the breakup of their relationship has caused Mr. Walker to be economically disadvantaged in terms of what he had been accustomed.

[68]         His future job prospects are extremely limited. He presently receives by way of Canada Pension $330 per month, old age security of $500 per month and government income supplement of approximately $700 per month. Interest on his savings accounts provide him with an income between $328 to $511 per month. His yearly income before income tax would be less than $25,000 per year.

[69]         Of the $606,000 settlement received from his share of the Yacht Road property, he initially squandered away $100,000 by gambling because of depression over his breakup. His health is purportedly guarded because of some medical concerns about his heart. He clearly has needs.

[70]         Ms. Brown’s current interest in Yakoun is 420 preferred shares valued at approximately $1,440,000 and a shareholder loan account of approximately $900,000 totalling $2,340,000. She still lives at Yacht Road valued at 1.6 million dollars. Annual draws from her retirement income fund account to cover her personal expenses lately has been $137,000 per year. She receives $10,000 per year from her Canada Pension Plan. At age 86, even after paying a form of spousal maintenance to Mr. Walker she still has ample means.

[71]         Counsel suggested that if maintenance is ordered that it be on a monthly periodic basis for a duration of 9 years. He said that this would both recognize the diminishing assets of Ms. Brown and the fact that Mr. Walker did receive $600,000 shortly after separation attributable to his relationship with Ms. Brown.

[72]         Applying the Spousal Support Advisory Guidelines based upon the parties’ respective annual incomes, counsel submitted the resulting monthly award ranges between $2,151 and $2,867 per month. He suggested an award of $2,151 per month for a period of 9 years is appropriate.

[73]         He also suggested that if a lump sum award is considered by the Court then the capitalized value of $2,151 per month should be discounted by 7% present value and future contingencies of 20% resulting in a lump sum payment of $116,184.

[74]         Because of a need for a clean break for the parties and Ms. Brown’s ample means, I think a lump sum award is preferable in this case.

[75]         I also think the high end range of $2,867 per month should be the starting point of the calculation for capitalized value, after present value discount of 7% resulting in $196,128. After applying 20% contingencies, the lump sum award is then approximately $157,000, which is the amount I fix as appropriate in this case.

Restraining Orders

[76]         After Mr. Walker separated from Ms. Brown, through a serious of letters to her counsel, he stated he would be writing his memoirs detailing his relationship and loss with Ms Brown entitled “The Great Miss Fortune (The Only Man She Ever Loved)”.

[77]         He sent synoptic chapters detailing his purported sexual experiences with Ms. Brown during their 14 years together. The descriptions were laden with crude and vulgar language. He threatened to distribute their wonder story to Ms. Brown’s children and friends. He would also bring it to the attention of the British tabloids and the sporting world of international skating.

[78]         To avoid public embarrassment and humiliation, he suggested a payment to him of a onetime lump sum of $350,000. Later, after a trial date had been set for his maintenance claim, he reiterated a lump sum settlement in consideration for dropping publication of his book and discontinuing distribution to others of advance draft copies.

[79]         On July 19, 2012 Weatherill J. issued the following restraining order against Mr. Walker:

1.     The Claimant, GORDON DELBERT WALKER, be restrained from directly or indirectly molesting, annoying, harassing, or communicating with, or attempting to molest, annoy, harras, or communicate with the Respondent, VALERIE FORTUNE BROWN.

2.     The Claimant, GORDON DELBERT WALKER, be restrained from transmitting, communicating, sending or attempting to transmit, communicate or send any correspondence to the Respondent’s relatives or friends.

3.     The Claimant, GORDON DELBERT WALKER, be restrained from publishing or making available to the public, in any form whatsoever, materials, or information pertaining to this Action, the Respondent, or her children. This shall include, but shall not be limited to: advertisements in any newspaper, magazine or publication; any publication in any form whatsoever on the internet.

[80]         His conduct in communicating with Ms. Brown, her relatives and friends was calculating and vindictive, requiring an interim restraining order. Ms. Brown’s counsel submits a permanent restraining order is necessary to prevent Mr. Walker from repeating his behaviour. They said his demonstrated character is such that a permanent restraining order is necessary.

[81]         Final orders restricting publication are unusual in a family law context but are not without precedent.

[82]         In L. (M.S.) v. G. (H.R.), 2005 BCSC 488, an interim restraining order was made restricting the husband from publishing material relating to his wife. The wife had consensually engaged in escort services during the course of the marriage. After separation, the husband began posting on the internet and telling friends about the wife’s previous activities. An interim injunction was granted prohibiting the husband from publishing any materials identifying the wife or connecting her to her previous activities as an escort. The order was made permanent at trial.

[83]         Mr. Walker’s threats of publication were improper and reprehensible to intimidate Ms. Brown in order to extract a financial gain. Mr. Walker’s threat was not a one-off threat, but repeated scurrilously to Ms. Brown and to her counsel.

[84]         Weatherill J.’s interim restraining order will be made a permanent order of this Court.

Special Costs

[85]         Ms. Brown’s counsel submits that Mr. Walker’s conduct during the course of litigation amounts to reprehensible conduct attracting an award of special costs.

[86]         As summarized in R.A.C. v. V.L.C., 2009 BCSC 1207:

As set out by the British Columbia Court of Appeal in Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740, 45 B.C.A.C. 222 (B.C. C.A.) at paras. 11 - 12, in order to attract special costs, a party’s behaviour during the litigation process must involve “positive”, “scandalous”, “outrageous” or “reprehensible” misconduct, “which makes such costs desirable as a form of chastisement”. The Court noted that “reprehensible”, as a word capable of wide interpretation, sets the threshold, encompassing any conduct “deserving or reproof or rebuke” from which the court might wish to disassociate itself.

[87]         The Respondent submits that the Claimant has engaged throughout this proceeding in conduct worthy of rebuke:

(a)            He has sent degrading, profane and purposely insulting correspondence to the Respondent, her friends and family in an attempt to intimidate the Respondent into settlement. He acknowledged that the Respondent would be embarrassed by his language. He described himself as “proud” of what he had written and distributed. It is obvious both in its purpose and in the accompanying letters to the book was an attempt to extort a financial settlement and discourage Ms. Brown from defending herself against him.

(b)            He has continued to threaten publication of his book for the express purpose of extracting a settlement.

(c)            He has written to third parties with no interest or involvement in the proceeding.

(d)            He has written correspondence which appears to be cc’d to CRA and the Prime Minister of Canada with the obvious purpose to intimidate Ms. Brown.

(e)            He advised the Court that he did not intend to publish the chapters of his book, saying they were the rough drafts of his “diamond” but has now advised he does intend to publish and distribute his book.

[88]         The role and threshold for specials costs were succinctly described in Gichuru v. York, 2012 BCSC 1385 at para. 6: “…special costs are meant to provide a successful party in litigation with indemnity for all legal expenses reasonably incurred, and will be awarded against an unsuccessful litigant as punishment for engaging in reprehensible conduct during the litigation.”

[89]         The term “reprehensible” encompasses a wide array of conduct:

A wide meaning is given to the word “reprehensible”. The term represents a general and all encompassing expression of the applicable standard for an award of special costs. “Reprehensible” conduct includes conduct that is scandalous, outrageous, or constitutes misbehaviour, as well as milder forms of misconduct that in a court’s view deserves reproof or rebuke. In determining whether the conduct of a party is reprehensible, courts may consider whether the conduct complained of is a type from which it should seek to dissociate itself. [Mayer v. Osborne Contracting Ltd., 2011 BCSC 914 at para 8].

[90]         If Mr. Walker is successful, an award of special costs in favour of Ms. Brown is not available. As the common law currently stands in B.C., special costs can only be awarded to an unsuccessful party in “highly exceptional cases involving matters or public importance” (see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. 30, [2003] 3 S.C.R. 371 (Okanagan), Barclay (Guardian ad litem of) v. British Columbia, 2006 BCCA 434, 57 B.C.L.R. (4th) 63).

[91]         In Gichuru, Bernard J. was faced with the question of whether an unsuccessful party can be awarded special costs and indicated that special costs are reserved for the successful party:

[20]      Even if the conduct of the defendant, or her counsel, could reasonably be characterized as reprehensible, it remains that the plaintiff was wholly unsuccessful in the litigation. The law does not support an award of special costs to the unsuccessful party.

[Emphasis added]

[92]         In Gichuru v. York, 2012 BCSC 1385 at para. 20, Justice Bernard stated that reprehensible conduct by the successful party can also lead to a denial of costs: “The relief for an unsuccessful party, where there has been reprehensible conduct by the successful party, is an order disallowing the usual order of costs to the successful party.” Importantly, the “reprehensible” conduct must be connected or relevant to the action (Robertson v. Canadian Imperial Bank of Commerce et al. (1997), 99 B.C.A.C. 22 at para. 6).

[93]         The B.C. Court of Appeal has also stated that it is “highly unusual” for an unsuccessful party to be awarded costs (Brito (Guardian ad litem of) v. Woolley, 2005 BCCA 357 at para. 9, 28 C.P.C. (6th) 227). Unless a case fits in the narrow exception carved out by Okanagan and Barclay, it does not appear that special costs are available to the unsuccessful party.

[94]         Accordingly depriving a successful-yet-misbehaved party of its costs in private litigation would be a sufficient punishment.

[95]         Using the language of Madam Justice Griffin in R.A.C. v. V.L.C., 2009 BCSC 1207, the Claimant “conducted himself in the litigation as a malicious bully. He attempted to threaten [the Respondent] in numerous ways, professionally and personally. These threats were improperly designed to pressure her to agree to his demands in the litigation.”

[96]         The Claimant’s conduct is deserving of rebuke such that this Court should disassociate itself from his behaviour; warranting an order denying him costs.

Conclusion

1.     This Court declares that the parties are spouses as defined by sec. 1 of the Family Relations Act.

2.     Claimant is entitled to spousal support in the lump sum amount of $157,000 plus court order interest from January 1, 2012.

3.     The restraining order sets out in the Order of Weatherill J. dated July 19, 2012 be made permanent.

4.     Because of his reprehensible conduct the Claimant is deprived of his costs, which otherwise would be granted.

“Wong J”