Kim v. DeCamillis Estate, (1999) 6 B.C.T.C. 264 (SC)

• Judge: Loo, J.
• Court: Supreme Court of British Columbia (Canada)
• Case Date: March 05, 1999
• Jurisdiction: British Columbia
• Citations: (1999), 6 B.C.T.C. 264 (SC)

Kim v. DeCamillis Estate (1999), 6 B.C.T.C. 264 (SC)

MLB headnote and full text

Temp. Cite: [1999] B.C.T.C. TBEd. MR.151

Inhye Kim (plaintiff) v. David DeCamillis and Ronald DeCamillis and Darlene Thom, in their capacity as Executors of the Estate of David DeCamillis (defendants)

(F970306)

Indexed As: Kim v. DeCamillis Estate

British Columbia Supreme Court

Vancouver

Loo, J.

March 5, 1999.

Summary:

The 45 year old female plaintiff and 80 year old deceased male befriended each other and lived together for 3.5 years starting in 1993. At the deceased's adult son's request, the deceased presented the plaintiff with a cohabitation agreement precluding her from any claim to his assets. The plaintiff, who spoke little English, signed without indepen­dent legal advice after being told it was a common agreement between persons cohabit­ing in Canada and that they could not live together if she did not sign it. The plaintiff did the housework and cooking and, at the end of the relation­ship when the deceased was dying of can­cer, the plaintiff provided nursing services. After the de­ceased's death, the plaintiff commenced an action for an interest in his assets. The deceased's estate claimed that they were not "spouses" and that the agree­ment precluded any claim. The plaintiff sought to vary or set aside the agreement for want of independent legal advice.

The British Columbia Supreme Court allowed the action. A spousal relationship existed within the meaning of the Family Relations Act. The cohabitation agreement, which was not freely negotiated, was declared invalid and set aside. The plaintiff's entitlement was based on unjust enrichment where the plaintiff, although receiving free accommodations, performed valuable ser­vices for the deceased and even sold her own business to do so. The court assessed the value of the plaintiff's services at $85,000.

Family Law - Topic 314

Marriage - Common law marriage - What constitutes - See paragraphs 41 to 59.

Family Law - Topic 3391

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Lack of independent legal advice - See paragraphs 60 to 70.

Fraud and Misrepresentation - Topic 1281

Fraudulent conveyances and preferences - Conveyances and preferences impeachable by creditors or others - Conveyances between relatives or near relatives - See paragraphs 38 to 39.

Restitution - Topic 62

Unjust enrichment - General - What consti­tutes - See paragraphs 73 to 83.

Restitution - Topic 784

Benefit acquired from the plaintiff - Re­covery based on quantum meruit - Work performed or goods provided - See para­graphs 73 to 83.

Cases Noticed:

Gostlin v. Kergin, [1986] 5 W.W.R. 2, (1986), 3 B.C.L.R.(2d) 264 (C.A.), refd to. [para. 42].

Takacs et al. v. Gallo (1998), 105 B.C.A.C. 115; 171 W.A.C. 115; 48 B.C.L.R.(3d) 265 (C.A.), refd to. [para. 43].

Fitton v. Hewton Estate et al. (1997), 94 B.C.A.C. 39; 152 W.A.C. 39 (Yuk. C.A.), refd to. [para. 43].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 65].

McDonnell v. McDonnell, [1997] B.C.T.C. Uned. J15 (S.C.), refd to. [para. 68].

Peter v. Beblow (1993), 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; 77 B.C.L.R.(2d) 1 (S.C.C.), refd to. [para. 73].

Statutes Noticed:

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 1(1), sect. 120.1 [para. 41].

Authors and Works Noticed:

Concise Oxford Dictionary (1998) [para. 58].

Counsel:

R.E. Eades, for the plaintiff;

D.R. Clark and M.H. LeFebvre, for the defendants.

This action was heard on July 21-31, 1998, at Vancouver, B.C., before Loo, J., of the British Columbia Supreme Court, who delivered the following judgment on March 5, 1999.