



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Davey 
          v. Gruyaert,







2007 
          BCCA 20



Date: 20070111





Docket: CA034097

Re:  
    The Estate of Ricky Allan Davey, also known as

Rick Allan Davey, also known as Rick Davey

Between:

Ivy 
    Christina Davey

Appellant

(
Plaintiff
)

And

Brenda 
    Gruyaert, Wayne Kirton and John Doe

Respondents

(
Defendants
)












Before:


The 
          Honourable Madam Justice Ryan




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine








R.J. 
          Cuddeford


Counsel for the Appellant




B. 
          Gruyaert


Acting on Her Own Behalf




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




December 11, 2006




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




January 11, 2007








Written 
          Reasons by
:




The 
          Honourable Madam Justice Newbury




Concurred 
          in by:




The 
          Honourable Madam Justice Ryan

The 
          Honourable Madam Justice Levine





Reasons for Judgment of the Honourable Madam Justice 
    Newbury:

[1]

For reasons indexed as 2006 BCSC 622, the Chambers judge below ordered 
    that the costs of the unsuccessful defendant and counter-claimant, Ms. Gruyaert, 
    be paid from the estate of the deceased, Mr. Davey.  Mr. Davey died at the 
    age of 46 without leaving a will.  The plaintiff/appellant was his mother 
    and is now, I understand, the administratrix of his estate.  Ms. Gruyaert 
    claimed a share of the estate on the basis that she qualified as the deceaseds 
    common law spouse as that term is defined at s. 1 of the
Estate Administration 
    Act
, R.S.B.C. 1996, c. 122.

[2]

In her earlier reasons after trial (dated December 8, 2005) the Chambers 
    judge found that Ms. Gruyaert had not met the onus on her to establish that 
    she had been the common law spouse of Mr. Davey.  At paras. 32  35, the Chambers 
    judge reasoned as follows:

In 
    the circumstances of this case, I must look at the objective factors.  These 
    parties did not share legal rights to their living accommodation, nor did 
    they share any bank accounts or have access to each others bank statements.  
    There was no financial intermingling at all.  Ms. Gruyaert had no access to, 
    or knowledge of, Rickys financial affairs.  There was no blending of incomes.  
    The two kept their belongings entirely separate.  They had separate vehicles.  
    Ms. Gruyaert did not contribute any money to the upkeep or ongoing expenses 
    of Rickys house.  Ms. Gruyaert not only kept her paycheque to herself but 
    also her benefit plans, though it would have cost her nothing to enrol Ricky 
    in her medical plans.  She maintained a separate mailing address and maintained 
    a residence with her parents until very shortly before Rickys death.  None 
    of these objective factors point to a marriage-like relationship.  Finally, 
    as I have noted, Ricky had virtually no relationship with Travis.  While I 
    am sure Ricky saw Travis from time to time and interacted with him, he did 
    not conduct himself as one who was involved in a marriage-like relationship 
    with Traviss mother.

There 
    is a great deal of evidence in this case of two people who loved each other 
    and spent a good deal of time together.  Ricky and Ms. Gruyaert clearly had 
    a strong bond.  I do not doubt that Ms. Gruyaert was Rickys companion in 
    his pursuits, as was acknowledged by many at Rickys funeral, and even by 
    Rickys mother and sister in the obituary they placed in the local newspaper.  
    I certainly reject the evidence of Ivy Davey and Sandra Ward that there was 
    no intimate relationship at the time of Rickys death.  In my view, their 
    views were entirely coloured by their dismay at Ms. Gruyaerts claim to Rickys 
    estate.

However, 
    I accept the evidence of Ms. Gruyaerts mother, Carol Davies, and her husband, 
    Ken Davies, which significantly undermines Ms. Gruyaerts claim.  From that 
    evidence, I conclude Ms. Gruyaert did maintain her residence and that of her 
    son, with her parents until she and Travis moved into the basement of Rickys 
    home a few weeks before Rickys death.  It is also telling, in my view, that 
    Ms. Gruyaert and Travis then moved to the basement suite and began paying 
    rent to Ricky.

As 
    noted by Parrett J. in
Harris v. Wille Estate
, [2001] B.C.J. No. 169, 
    the court should be very slow to impose on parties commitments which, by their 
    conduct, they have clearly not intended to make.  On Ms. Gruyaerts evidence 
    alone, I conclude that absent from the relationship was any element of economic 
    [dependence], a sharing of and commitment to a common principal residence, 
    and a general recognition that they were a family unit.

The Court also dismissed a claim in constructive trust 
    asserted by Ms. Gruyaert, noting that in return for her contributions of companionship 
    and some domestic and personal support, Ms. Gruyaert had received a substantial 
    benefit in the form of living rent-free in Mr. Daveys basement suite, and 
    the payment of certain travel expenses.

[3]

Notwithstanding this result, the Chambers judge wrote in her later 
    reasons that Ms. Gruyaert should have her costs from the estate on a party-and-party 
    basis.  In reaching this conclusion, the Chambers judge relied on a decision 
    of the Supreme Court of British Columbia in
Re Schipmann Estate
[1999] B.C.J. No. 1377, where a Master had referred to a judge a question 
    regarding the propriety of certain deductions for taxes payable on a bequest 
    of real estate.  The question was resolved by Cowan J. in favour of the executrix 
    and against the residuary beneficiary, but both sought to recover their costs 
    from the estate.  Cowan J. ordered special costs in favour of the executrix 
    and costs on scale 3 from the estate in favour of the beneficiary, and stated:

A 
    review of the several cases referred to by counsel on the issue of the award 
    of costs in matters pertaining to issues arising in estate cases leads me 
    to conclude that, while the general rule that an unsuccessful party is obligated 
    to pay the costs of the successful party in matters pertaining to issues which 
    arise relating to such matters as the capacity of the testator or the proper 
    construction of a will and issues arising therefrom, the court may in its 
    discretion depart from that general rule and award costs to an unsuccessful 
    party out of the estate,
particularly so if the court is of the opinion 
    that the party seeking a judicial resolution of the issues concerned had reasonable 
    grounds for bringing an application for that purpose.

In 
    the present case I am of the view, given the somewhat complex issue which 
    was before the court pertaining to the administration of the deceaseds estate 
    in this case, that it was reasonable and appropriate for the application to 
    be made and for the beneficiary  to seek a resolution of the issue favourable 
    to him.  [At paras. 7-8; emphasis added.]

The Chambers judge in the instant case noted that similar 
    reasoning had also been followed in
Janus v. Lachocki
, 2001 
    BCSC 1702 at para. 79.

[4]

Ms. Davey appealed the costs order to this court but did not obtain 
    leave prior to the hearing as required by s. 7(2) of the
Court of Appeal 
    Act
, R.S.B.C. 1996, c. 277.  When this was brought to counsels attention, 
    he applied for leave from the panel and Ms. Gruyaert did not object and informed 
    the Court that she was ready to proceed, although she had not filed a factum.  
    I am of the view that leave to appeal should be granted.

[5]

On the merits of the appeal, I do not believe that the question of 
    whether the claim was brought reasonably is the correct one.  The starting 
    point, of course, is the principle that costs follow the event and that any 
    departure from that rule is usually intended to deprive the successful party 
    of costs rather than to award costs to an unsuccessful party.  In
Vielbig 
    v. Waterland Estate
(1995) 1 B.C.L.R. (3d) 76, this court noted that 
    exceptions are made to the usual rule more readily in estate cases than in 
    other areas of the law.  Writing for the Court, Hinds J.A. quoted the following 
    passage from the judgment of Master Horn in
Lee v. Lee Estate
(1993) 84 B.C.L.R. (2d) 341 (S.C.) as follows:

An 
    order for costs in favour of a completely unsuccessful party against a completely 
    successful party is a most exceptional order.  The general rule 
    is that costs follow the event and, while a court may depart from this rule, 
    any departure is usually in the way of depriving a successful party of costs 
    and not of awarding costs to an unsuccessful party.  In either case, 
    the usual rule should not be departed from simply because an unsuccessful 
    party did not expect to lose.  (
Baart v. Kumar
(1985) 21 
    D.L.R. (4th) 705 [66 B.C.L.R. 61] (B.C.C.A.), at p. 711;
Burnaby (District)

Approving Officer) v. Mutual Development Corp
., [1971] 5 W.W.R. 97 
    (B.C.C.A.) at pp. 100 and 105;
Donald
Campbell & Co.
v. Pollak
[1927] 
    A.C. 732 (H.L.), at p. 776.)

In 
    probate or administration actions or in proceedings for the construction of 
    wills, the rule may be more frequently departed from.  In such cases 
    where the validity of a will or the capacity of the testator to make a will 
    or the meaning of a will is in issue, it is sometimes the case that the costs 
    of all parties are ordered to be paid out of the estate.  This is 
    upon the principle that where such an issue must be litigated to remove all 
    doubts, then all interested parties must be joined and are entitled to be 
    heard and should not be out of pocket if in the result the litigation does 
    not conclude in their favour.  The estate must bear the cost of 
    settling disputes as a cost of administration.  This is the reasoning 
    which underlies such cases as
Re Dingwall
(1967), 65 D.L.R. (2d) 43 
    (Ont. H.C.); and
McNamara v. Hyde
[1943] 2 W.W.R. 344 (B.C.C.A.); and
Re Lotzkar Estate
(1965), 51 W.W.R. 99 (B.C.C.A.).  The question 
    to be asked in such case is whether the parties were forced into litigation 
    by the conduct of the testator or the conduct of the main beneficiaries.

But 
    the case is different where the litigation does not relate to the validity 
    of the will or the capacity of the testator or the construction of the will.
Actions 
    brought under dependants relief legislation presume the validity of the will 
    and the capacity of the testator and that his intentions are clear.  There 
    are no doubts to be settled.
The remedies provided by such legislation 
    are directed to the maintenance and support of the dependants of the testator 
    and are based on public policy.  The legislation does not invalidate 
    the will, it merely permits the court to vary the provisions made by the testator.
So an unsuccessful action under such legislation cannot be said to have 
    been caused by a testator, or to  have been necessary to enable the estate 
    to be distributed.  The action does not benefit the estate.
[At 
    346-7; emphasis added.]

In
Lee Estate
, Master Horn also noted the 
    comment of Robertson J.A. in
Lukie

v. Helgason
(1976) 1 B.C.L.R. 1 (C.A.) to the effect that he looked without favour on 
    any notion that persons without meritorious claims under the dependants relief 
    legislation should be in a position of trying to obtain part of the estate 
    without risk to themselves and at the expense of the persons whom the testator 
    wished to benefit.  (At 15.)

[6]

Vielbig v. Waterland 
    Estate
concerned 
    a claim under the
Wills Variation Act
, R.S.B.C. 1979, c. 435.  
    Hinds J.A. concluded for the Court that since no question had arisen of the 
    validity of the will, the testators capacity or the meaning of the will, 
    it could not be said that the litigation had been necessitated by the testators 
    fault.  Accordingly, the Court ruled that the general rule should prevail 
    and costs follow the event.

[7]

Although the case at bar does not arise under the
Wills Variation 
    Act
, the similarities between Ms. Gruyaerts claim and a claim made 
    under that statute are obvious.  The litigation in this case was not necessitated 
    by any failure on the part of the deceased to express his intentions clearly 
    or by a question as to his capacity.  As in
Re Bowe Estate
[1971] 
    4 W.W.R. 234 (B.C.S.C.), a decision of Chief Justice Wilson, there was a simple 
    assertion and denial of a claim under a statute.

[8]

In my respectful view, the usual rule should have prevailed in this 
    case and Ms. Gruyaert should not have been awarded her costs from the estate 
    of Mr. Davey, thus diminishing the estate.

[9]

I would allow the appeal and strike out the Chambers judges order 
    which awarded costs to Ms. Gruyaert, but I would not order costs against her.

The Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Ryan

I Agree:

The Honourable
Madam Justice Levine


