Peri v. McCutcheon

This morning, the British Columbia Court of Appeal released its decision in Peri v. McCutcheon, a case in which it was asked to give an expanded interpretation of the meaning of “children” in the Wills Variation Act. The Court was asked to interpret the word "children" to allow child who was neither the biological or adopted child of a person to apply to vary his will. In British Columbia, the Wills Variation Act allows a child, including an independent adult child, to apply to court to vary his or her parent’s will if the parent has not made “adequate provision” for the child in the will. If the court finds that adequate provision has not been made, the court may order such provision for the child as the court decides is “adequate, just and equitable in the circumstances."

In the past the courts have interpreted “children” under the Wills Variation Act to be limited to either the parent’s biological children, or children that the parent has legally adopted. This means that a step-child cannot make a claim under the Wills Variation Act to vary the step-parent’s will (unless the step-parent adopted the step-child). In 1994, in a decision called Hope v. Raeder Estate, the Court of Appeal held only a biological or adopted child could apply under the Wills Variation Act. In Hope the Court held that it was not open to the Court to give the word “children” an extended meaning. The Court said that only the Legislature could extend the meaning under the Wills Variation Act to include step-children.

In Peri, the British Columbia Court of Appeal sat as a five court paned. Usually, three judges of the Court of Appeal hear an appeal from a decision of the Supreme Court of British Columbia. But a party to an appeal may request that five judges sit in order to reconsider a decision in an earlier case.

Deborah Peri was seeking to vary the will of Harbanse Doman, who made no provision in his will for her. Mr. Doman was married to Ms. Peri’s mother when Ms. Peri was born, but he was not her biological father. Ms. Peri was born in Seattle, and Mr. Doman identified himself as her father on her registration of birth, and on immigration papers allowing her to immigrate to Canada. He arranged for her to live with another family, and paid support for her. He also paid for a private school for her, paid expenses while she was in college, and paid wedding expenses for her. He met with her occasionally. However, he kept a physical and emotional distance from her, and made it clear to her that he was not her father, did not intend to be her father, and did not consider her as part of his family.

The Court of Appeal declined to give “children” an extended meaning in this case to include Ms. Peri.

But what is most intriguing about this decision is that the Court of Appeal did not rule out the possibility that the court might give the word “children” an extended meaning to include a step-child under the Wills Variation Act in a future case. The Court of Appeal did not consider the facts of this case compelling, finding that Mr. Doman’s did not stand in the position of a parent to Ms. Pari.

Madam Justice Prowse wrote:

[ 36] In the absence of a more compelling case than has been presented, I do not find it necessary to grapple with the question of whether it should be left to the Legislature to expand the scope of who may claim as a “child” or “children” of a testator under the Act, or whether social, scientific and other circumstances have changed so significantly that it is appropriate for the Court to re-interpret those words. Thus, I find no basis for interfering with the decision of the chambers judge that Ms. Peri is not a child of the Testator within the meaning of s. 2 of the Act.

The Court of Appeal left the door open—just a crack—to a step-child with more compelling circumstances showing that he or she had a parent-child-like relationship with a step-parent to persuade the Court of Appeal to give the word “children” an extended meaning under the Wills Variation Act.

Unjust Enrichment: Claims by Stepchildren

The law of unjust enrichment is a vital, flexible and evolving branch of Canadian common law. It allows the courts to remedy injustices for which other, older branches of law do not apply.

The basic principles of an unjust enrichment claim are as follows:

1. The person making the claim must have benefited or enriched the defendant;
2. The person making the claim must have suffered a corresponding deprivation;
3. There is no juristic reason for the enrichment.

In my October 30 post, I wrote about Schnogl v. Blazicevic, 2004 BCSC 1335, a case in which the Supreme Court of British Columbia awarded the plaintiff, who was a tenant and friend of the deceased, a 90 percent interest in the deceased’s house by imposing a constructive trust on the house. The court found that the plaintiff had provided extensive services to the deceased and the deceased’s spouse in the legitimate expectation that the plaintiff would be left the house in the deceased’s will.

Today I am writing about my favorite unjust enrichment case, Moyes v. Ollerich Estate, 2005 BCCA 518.

Joan Moyes was Marjorie Ollerich’s stepdaughter. Mrs. Ollerich had married Joan’s father when Joan Moyes was 18 years old. Over the years, they developed a close bond, and a mother and daughter relationship. When Joan Moyes father Andrew Ollerich died in 1966, he left his assets to Mrs. Ollerich.

As Marjorie Ollerich got older, her health deteriorated, and Joan Moyes provided a great deal of comfort and care to her. Although Joan Moyes lived a few hours away from Kelowna, where Marjorie Ollerich lived, Mrs. Moyes spent days and weeks at a time, away from home, caring for Mrs. Ollerich. After Mrs. Ollerich went to live in nursing homes, Mrs. Moyes continued to visit her and assist her.

Mrs. Ollerich had told Mrs. Moyes on two occasions that she would be leaving a significant share of her estate to Mrs. Moyes.

However, Mrs. Ollerich’s last will left Mrs. Moyes $25,000 out of an estate of about $700,000. There were a number of other specific financial gifts, and the residue was left to Mrs. Ollerich’s brother.

After Mrs. Ollerich died, Mrs. Moyes brought a claim against her estate on the basis of unjust enrichment. The case was heard as a summary trial, on affidavit evidence.

Madam Justice Beames, of the Supreme Court of British Columbia, awarded Mrs. Moyes $125,000 plus interest in addition to the $25,000 bequest.

In reaching her decision, Beames J. cited another case brought by a stepdaughter who advanced a claim to a larger share of her stepparent’s estate: Clarkson v. McCrossen (1995), 3 B.C.L.R. (3d) 80 (B.C.C.A).

Clarkson is a significant case because the British Columbia Court of Appeal held that the in determining the amount of a monetary award for unjust enrichment, the court may consider the supportive relationship between the plaintiff and her stepparent. Mr. Justice Hinds in Clarkson said:

In the particular circumstances of this case, where a stepdaughter had been treated for a period in excess of 40 years - almost her entire life - as a natural daughter by her stepfather, where a close relationship existed between them and each became somewhat dependent on the other and where there was a reasonable expectation, I am of the view that the supportive relationships between the respondent and her stepfather, above described, are compensable. The value of them, to a moderate degree, should be included in the determination of the value received approach to the monetary award.

In his concurring judgment in Clarkson, Chief Justice McEachern wrote:

This leads me to conclude that, in principle, no distinction should be drawn between services rendered under a reasonable expectation of fair treatment between a stepdaughter, as in this case, and a wife or common-law partner. The enrichment must be viewed appropriately in the context in which it is created. Many years of loving care and companionship furnished by a devoted stepdaughter, for example, where there is a reasonably based expectation of tangible benefit, should not always be equated to the per diem cost of employed homemakers at minimum wages.

The defendants in the Moyes case appealed to the British Columbia Court of Appeal, both on the finding of unjust enrichment, and second on the amount of the award. The Court of Appeal found that the first ground was “misconceived,” finding that the Chambers judge properly considered Mrs. Moyes evidence of Mrs. Ollerich's statements to her that she would leave a significant share of her estate to Mrs. Moyes in the context of the surrounding circumstances.

With respect to the amount of the award, the defendants argued that the nature and extent of the services that Mrs. Moyes rendered were not as extensive as the plaintiff in Clarkson, and, therefore, the amount of the award should be lower.

The plaintiff argued before the Court of Appeal that the nature and extent of the services was one of several factors, and not the only factor, that the court could consider. The court could also consider the nature of the relationship between the parties, the plaintiff’s sacrifices, the reciprocal benefits the plaintiff received from the deceased, and the size of the estate.

The Court of Appeal upheld the amount of the award. Madam Justice Prowse, for the court, said in respect of Clarkson,

While it may be fair to say that the nature and extent of the services provided by the stepdaughter in Clarkson was greater than that here, that case does not purport to set an upper limit. It was simply a case in which this Court determined that it was inappropriate to interfere with the quantum of the award.

Prowse J.A. also said, “[I]t is clear from the authorities that trial judges have considerable discretion in that regard to take into account the specific circumstances before them.”

I intend to discuss the differences between the remedies of constructive trust and monetary awards in a future post. But, for now, I think that both Clarkson and Moyes are significant cases in the evolution of unjust enrichment in that they tend to narrow the gap between cases in which the court chooses the remedy of constructive trust, and gives the plaintiff an interest in property that may have a substantial value, and monetary awards that were traditionally quite modest.

I would like to thank Joan Moyes for her decision a couple of years ago to retain me. It was an honor to represent her in both the Supreme Court of British Columbia, and in the Court of Appeal.

The Wills Variation Act: Who May Apply?

[Effective March 31, 2014, the Wills Variation Act was replaced by Division 6 of Part 4 of the Wills, Estates and Succession Act, which will apply to all deaths on or after that date, and under which separation after a marriage or a termination of a common-law relationship affects the right of a former spouse to apply. This changes the law and the article below is no longer current in respect of separated spouses.]


The Wills Variation Act, R.S.B.C. 1996, c. 490, says that the court may vary a Will in favor of a “spouse or children.” (See my September 4 post for an introduction to the British Columbia Wills Variation Act here.)

A spouse includes a legally married spouse, and in some circumstances a common law spouse. Section 1 says that a spouse “means a person who
(a) is married to another person, or
(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.”

The Wills Variation Act does not allow claims on behalf of a divorced spouse, but a separated married spouse may apply. In Wagner v. Wagner Estate (1991), 62 B.C.L.R. (2d) 1, a majority of the British Columbia Court of Appeal held that the fact that the wife and husband had signed a final separation agreement did not bar the wife from making a claim under the Wills Variation Act after her husband’s death.

The use of the word “is” in the definition of spouse implies that a common law spouse must have been living with the deceased in a marriage like relationship at the time of the deceased’s death. The wording is not as clear as the definition of “common law spouse” in the Estate Administration Act, R.S.B.C. 1996, c. 122, where a person must have cohabited in a marriage-like relationship “for a period of at least 2 years immediately before the other person’s death.” The wording used in the Estate Administration Act has been held to preclude a claim by a person who had separated from the deceased before his death in Einfeld v. Bellrichard, 2001 BCSC 92. I am not aware of any decisions considering whether the wording of the current definition of spouse in the Wills Variation Act precludes a claim by a separated common law spouse.

To determine whether the Plaintiff lived in a marriage-like relationship with the deceased for the purpose of the Wills Variation Act definition of spouse, Mr. Justice R.R. Holmes in Janus v. Lachocki Estate, 2001 BCSC 1702, adopted the analysis used by Lambert J.A. for the Court of Appeal, in Gostlin v. Kergin, [1986] 5 W.W.R.1, 1 R.F.L. (3d) 448, 3 B.C.L.R. (2d) 264 in respect of support obligations of a common law spouse under the Family Relations Act, R.S.B.C. 1996, c. 128:

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. 57. 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.
Of course, in the particular circumstances 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?
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.

Because both a common law spouse and a separated married spouse can apply for a share of the deceased estate under the Wills Variation Act, two spouses may make competing claims under the Act.

“Child” and “Children” are not defined in the Wills Variation Act, but includes a natural child, whether the child is born inside or outside of marriage, and an adopted child.

Neither a natural child of the deceased who has been adopted out to other parents, nor a stepchild has any claim under the Wills Variation Act. Even a minor stepchild who was dependant on the deceased cannot apply for a share of the estate under the Wills Variation Act. The British Columbia Supreme Court held that the exclusion of step children from the Wills Variation Act does not offend the equality provisions of the Canadian Charter of Rights and Freedoms in McCrea v. Barrett, 2004 BCSC 208.

I suggest that where the deceased had been in the position of a parent to the stepchild, the law is incoherent. During the deceased’s lifetime, a minor or other dependant stepchild may be entitled to support from a stepparent under the Family Relations Act,but has no claim to a share of the stepparent’s estate under the Wills Variation Act, even where the stepchild can show financial need.

[Since I wrote this post, I have posted the following other articles on the Wills Variation Act:
"The Wills Variation Act: What is Adequate, Just and Equitable? here;
"Wills Variation Act: A Summary of the Principles" here;
"Time Limits for Bringing a Wills Variation Act Claim" here.]