Baulne v. Burtch,





2002 BCSC 1905



Registry:  Kelowna


Oral Reasons for Judgment
The Honourable Madam Justice Beames
December 19, 2002






GERALD BURTCH, Executor of the Estate of Belva Jean Baulne, Deceased, GERALD BURTCH, Executor of the Estate of Maurice Leonard Baulne, Deceased, DWAYNE CHAFFEE also known as WAYNE CHAFFEE, SERENA IRWIN also known as SARINA CHAFFEE, SIDNEY CHAFFEE, WENDY TRYTKO also known as WENDY CHAFFEE, KEVIN BURTCH and GERALD BURTCH




Counsel for the Plaintiff:

R.P. Kimmitt
J.R. Jordan


Counsel for the Defendants, Gerald Burtch, Kevin Burtch and Dwayne Chaffee:


S.T. Rule


Counsel for the Defendants, Serena Irwin, Sidney Chaffee and Wendy Trytko:


J.D. Metherell

Place and Date of Trial:

Kelowna, B.C.
December 3-6, 9 and 10, 2002

[1]                THE COURT:  On December 30, 2001, Maurice Baulne and Belva Baulne committed suicide, taking with them their profoundly disabled son, Reese Baulne.  The plaintiff, Chad Baulne, now thirty-four, is their only surviving child.  He was not named as a beneficiary in the Wills of his parents, which were signed March 29, 1994, and has brought this action pursuant to the Wills Variation Act, R.S.B.C. 1996, c. 490.

[2]                The six defendants, the surviving named beneficiaries to the Wills of Maurice Baulne and Belva Baulne, are nieces and nephews of Maurice and Belva Baulne, all from Belva Baulne's side of the family.  The defendant, Gerald Burtch, in addition to being a beneficiary, is the named executor of both estates, which have a combined value, I am told, of approximately $467,000.00.  Letters probate were issued on April 10, 2002.

[3]                The plaintiff's position is that his parents had no valid or rational reason for disinheriting him; that they failed to discharge at least their moral and potentially their legal obligations to him; and that the Wills should be varied such that a substantial portion of the estates is received by him. 

[4]                There are two different positions taken by the defendants.  Three of the defendants, Gerald Burtch, Dwayne Chaffee and Kevin Burtch, represented by one counsel, seek to uphold the Wills, and in the alternative, argue that Chad Baulne should receive no more than one-seventh of the estate such that he receives the same amount as the six named beneficiaries.  The other three defendants, represented by separate counsel, say that out of a sense of fairness the plaintiff should receive a share of the estates, in the range of forty-five to fifty percent, with the balance being distributed in equal shares to the six named beneficiaries. 

[5]                Before I review the background facts, which I intend to do as briefly as the circumstances permit, I will say this.  This is, indeed, a tragic case.  Most of the evidence in this trial concerned the relationship of the plaintiff with his parents and the stated reasons for the disinheritance of the plaintiff by his parents.  Much of the evidence about the plaintiff's relationship with his parents relates to events which occurred when only the plaintiff and his parents were present and consequently, as is common in cases such as this, only one side of the story or one side's perspective, has been heard during the trial.  Some of the events I heard evidence about occurred in the presence of the plaintiff's wife and her evidence was certainly consistent with the evidence of the plaintiff.  Some other events are proved by documents or corroborated by evidence of other witnesses.  Virtually all of the blame or fault for the problems in the plaintiff's relationship with his parents has been laid by the plaintiff at the feet of his mother, although to a minor extent the plaintiff appears to hold his father responsible for some of the problems.  

[6]                Bearing in mind that I have heard, for the most part, as I have indicated, only the plaintiff's perspective on events, the following are the relevant background facts as I find them. 

[7]                Maurice and Belva Baulne had two children, Reese and the plaintiff.  Reese was disabled from birth but his disabilities apparently worsened with age.  He required constant care, the vast majority of which was provided by his parents and particularly by his mother.  The plaintiff helped with Reese's care to a limited extent while he resided with his parents.  Other extended family members offered from time to time to assist with Reese's care but, as I understand the evidence, were rarely taken up on their offers.  Over the years it appears the burden of caring for Reese became increasingly onerous and wearing for the plaintiff's parents, and particularly for his mother, Belva Baulne.  The plaintiff, at least from outward appearances, had a relatively normal relationship with his parents while he was in the early stages of growing up.  On the plaintiff's evidence, he started to have difficulties with his mother starting in his pre-teens and continuing into his teen years. 

[8]                He gave extensive evidence of his mother's emotional difficulties, including what he described as her rages, which involved shouting and uncontrollable crying, often accompanied by body tremors, insulting comments about the plaintiff, his father and the entire Baulne family, and other irrational behaviour such as driving off erratically, threatening suicide and failing to return for extended periods of time; and her periods of spending days in bed, depressed and weeping and talking about wanting to die.

[9]                It was the plaintiff's evidence that his father, for the most part, just meekly stood by when his mother was having one of her rages and that his father often talked to him about the living hell that his life was and the disappointment of waking up in the morning, finding that he was still alive. 

[10]            According to the plaintiff, he felt that he was cast in the role of a counsellor for his troubled parents as early as his teenage years.  He gave evidence that his parents were completely unsupportive of his expressed intention to go to college and, indeed, said that they made disparaging remarks about post-secondary education in general and that they told him that he would have to move away from home if he pursued any post-secondary training.  Notwithstanding what he said was a very unhappy and dysfunctional home life, I do note that the plaintiff continued to live at home after high school while working and, indeed, returned home after he lived with a friend for a period of time. 

[11]            In 1991, the plaintiff married, with the support and blessing of his parents who participated in wedding planning, preparations and costs.  The plaintiff then moved from his parents’ home to the home of his wife's mother.

[12]            In September of 1991, the plaintiff's daughter, Justine, was born.  It is clear that from the outset the plaintiff's parents, and particularly his mother, wanted to have an active role and involvement with their granddaughter.  Maurice and Belva Baulne suggested to the plaintiff and his wife that a manufactured home be purchased and moved onto their property so that the plaintiff and his wife could have their own place.  Notwithstanding what the plaintiff says about the unhappy family relationship he grew up in, he and his wife agreed to the proposal.  It was the understanding of the plaintiff and his wife that the home would be theirs and further, that when the property was removed from the agricultural land reserve some day, Maurice and Belva Baulne would subdivide the property and give the plaintiff ownership of half of it. 

[13]            Maurice Baulne found the manufactured home, negotiated the purchase of it and made arrangements to move it onto the property.  Maurice and Belva Baulne paid the original purchase price of $20,000.00 or $21,000.00.  According to the plaintiff, he understood that the purchase price was a gift or a bequest made to him by his paternal grandfather, although his paternal grandfather was still alive at that time, as was his paternal grandmother, and there is no evidence before me that the plaintiff was ever a beneficiary of his paternal grandfather's estate. 

[14]            The manufactured home needed some work and Belva and Maurice Baulne borrowed a total of $26,000.00 to fund that work, as well as to pay off car loans the plaintiff and his wife had outstanding at the time, which I am satisfied totalled some $10,000.00 or $11,000.00.  The arrangement was that the plaintiff and his wife would make the loan payments in the amount of $550.00 per month and they initially did.

[15]            The plaintiff and his father worked together, with some additional assistance, in completing the necessary renovations.  The plaintiff testified that he put significant time and a modest amount of money into improving the manufactured home.  Throughout this time, the plaintiff and his wife believed the manufactured home was theirs and they were being told by the plaintiff's parents that the manufactured home was theirs.

[16]            In early 1992, the plaintiff, his wife and their daughter were able to move into the manufactured home.  The evidence of the plaintiff and his wife was that, initially, living in the manufactured home was fine as was their relationship with the plaintiff's parents.  As time went on, however, problems developed, particularly on the part of the plaintiff's mother who became concerned that she was not getting enough time with her granddaughter, and in particular, not as much time as her granddaughter's other grandmother was getting. 

[17]            As tensions escalated, Belva Baulne started to complain to others that she was not seeing her granddaughter often enough, that she was not permitted to give her granddaughter gifts and that she felt it had been a mistake to have the two families living so close together.  As things worsened, Maurice and Belva Baulne announced to the plaintiff that his mother-in-law would no longer be welcome on the property.  The plaintiff's wife was asking questions about the actual ownership of the manufactured home, apparently at the suggestion of her mother, and the plaintiff, as he described it, was caught in the middle trying to be both a loyal husband and a loyal son.  I do not doubt that as the tensions increased the plaintiff's parents saw less and less of their granddaughter.

[18]            Sometime in later 1992, Belva Baulne had what the plaintiff referred to as one of her rages in front of the plaintiff, his wife and their child.  This was the first rage apparently witnessed by the plaintiff's wife and after that event the plaintiff's wife refused to attend at Belva and Maurice Baulne's home.  However, with his wife’s encouragement, the plaintiff continued to take Justine to visit his parents on weekends and, when he was able to fit it in between his work schedule and Justine's sleeping schedule, after work on occasion. 

[19]            During this time, the plaintiff says that his mother had another rage, relating to her wanting to dictate to him when and how she would see Justine, which rage took place while his mother was holding Justine and which the plaintiff eventually had to plead with his father to assist in bringing to an end.  This event proved to be nearly the last straw.

[20]            In March of 1993, shortly after the incidents to which I have just referred, Belva and Maurice Baulne attended at the manufactured home and demanded that the plaintiff and his family move out immediately.  They subsequently refused to permit the plaintiff and his wife to take the manufactured home and the plaintiff and his wife consequently refused to make any further payments on the loan notwithstanding that their car loan comprised a portion of the loan.

[21]            From March of 1993 until 1996, Belva and Maurice Baulne had no contact with Justine.  The plaintiff, commencing within a few weeks of leaving the manufactured home, had some very limited contact with his father and then a few visits at his parents' home; but, he stopped attending because, in his words, things got worse. 

[22]            In late 1993, the plaintiff, his wife and his parents had what was described as a counselling session with the pastor of the church the plaintiff and his wife attended.  There was no positive outcome from that session.  The plaintiff and his wife both testified that in the course of that session the plaintiff's mother, Belva, refused to take any responsibility for the breakdown of the relationship, insisted that she was a perfect mother and insisted that she would do nothing different.  Further, according to the plaintiff and the plaintiff's wife, Belva Baulne announced in this somewhat public session that she did not love the plaintiff. 

[23]            In 1994, the plaintiff and his father saw each other a few times at the plaintiff's work place and had limited and very neutral conversation.  The plaintiff's only contact with his mother that year was a telephone call from her to him on Christmas Day which, on his evidence, consisted primarily of the plaintiff's mother accusing him of ruining his father's life.  The plaintiff's wife, hearing the sound of yelling through the phone, eventually hung up the phone and terminated the call. 

[24]            In 1995, the plaintiff had limited contact, through chance meetings, with his father.  In later December of that year, he happened to see his father at a gas station and his father asked if they could see Justine.  The plaintiff said that he did not know and repeated, as he had told his parents before, that they needed to get help.  The plaintiff testified that his father said that if visits did not start, he and his wife would be getting legal advice. 

[25]            Eventually the plaintiff and his wife, having discussed the matter, agreed that Maurice and Belva Baulne could come to visit Justine at their house but the plaintiff made it clear to his parents that he and his wife intended to take things slowly; that they would decide when and where visits would take place; that they were concerned about Belva Baulne's behaviour; and that his parents could not have any expectations. 

[26]            The plaintiff's evidence was that his father agreed to those terms and consequently a visit was set up and took place in January of 1996.  The visit was, not unexpectedly, somewhat tense but it basically went well.  It lasted approximately an hour and a half.  After the visit, the plaintiff started to visit his parents again a few times per month. 

[27]            Several months went by and Belva Baulne called the plaintiff's wife and asked to have another visit.  The plaintiff and his wife had already been discussing the possibility of another visit, according to the plaintiff's wife, and so one was set up for late June or early July of 1996.  That visit, according to the evidence I heard, also went well. 

[28]            The plaintiff continued, after the second visit, to visit or have contact with his parents but no further visits were arranged for them to see Justine. 

[29]            In October, according to the plaintiff, the plaintiff's mother started to become what he described as demanding about access to Justine, wanting to say how often, where and when the access should take place.  He repeated to his mother that they were going to take it slow and on that occasion left his parents' home.

[30]            His next visit was in November of 1996 at which time, he testified, his mother was even more demanding.  Notwithstanding her increasingly aggressive attitude, the plaintiff stopped by in December to invite his parents to come and visit Justine before Christmas.  At that time, his mother tried to start another argument with him about access and he left saying that they were still welcome to come over. 

[31]            The plaintiff's parents did come for a visit in December and it was clear from the evidence before me that the visit was a disaster.  The plaintiff and his wife testified that Belva Baulne started aggressively questioning Justine within moments of arriving at the home about such things as where she attended school, who her teacher was, whether her mother ever hit her and whether her parents fought.  The plaintiff and his wife removed Justine and took her upstairs to her room. 

[32]            On their return downstairs, the plaintiff's mother started shouting at them and threatening legal action to get access.  The plaintiff's wife was reduced to tears.  The plaintiff insisted that his parents leave and told them that if they did not he would call the police.  Maurice and Belva Baulne did leave following which the plaintiff and his wife found Justine sitting at the top of the stairs, upset and crying. 

[33]            Shortly after that meeting, the plaintiff's parents sent Justine a card indicating that they would be dropping off Christmas presents for her.  The plaintiff and his wife decided that they could not put themselves through any more of this kind of turmoil and sent the plaintiff's parents a letter.  The letter, which can only be described as being very cold in tone, stated that there were to be “visitation guidelines” and that there would be one visit per year for a half an hour in a public place.  The visit would be arranged by the plaintiff and his wife and the plaintiff's parents would be given one week's notice of the date and time.  The letter suggested that the next visit would "possibly occur in the summer of 1997". 

[34]            Clearly in reaction to that and continuing the spiral downward, on January 30, 1997, Belva and Maurice Baulne commenced in action in the British Columbia Supreme Court to obtain access to Justine.  The plaintiff responded to the legal proceedings by filing an affidavit questioning Belva Baulne's mental health; criticizing her treatment of the plaintiff and the marital relationship between the plaintiff's parents; and blaming his dysfunctional family situation when he was younger for alcohol and drug use he engaged in as a teenager, and for causing him to constantly contemplate suicide as a means of escaping his family in his earlier years. 

[35]            His wife also filed an affidavit questioning the mental health of Belva Baulne and saying that any contact would jeopardize Justine, potentially causing her irreparable harm.

[36]            One of Belva Baulne's sisters-in-law filed an affidavit in support of the plaintiff's position, that is the plaintiff in this case, and the plaintiff contacted one of his mother's brothers to assist although that uncle eventually refused to provide an affidavit. 

[37]            The plaintiff and his wife also filed a cross-motion, I am told, although I did not see the document, seeking an order requiring the plaintiff's parents to have a psychological assessment.  The plaintiff's parents, following receipt of the response material, abandoned their application.

[38]            The plaintiff saw his father several months later at his place of work.  His father told him he had acted dishonourably and that he would not be seeing him again.  The plaintiff's mother attended at his place of work once when he was not there and once when he was.  On the latter occasion, the plaintiff and his mother spoke.  He described her as being initially meek and mild and said she asked him if he had given any thought to attending counselling with them about access. 

[39]            He testified that he told her that she and his father should go to counselling and get the help they needed and deserved but that he and his wife would not attend with them as they could not help them.  The plaintiff's mother then, according to the plaintiff, “just blew up”, yelling at him, dictating to him what was going to happen and eventually running after his truck as he drove away. 

[40]            On September 24, 1997, the plaintiff and his wife filed a notice of motion seeking a restraining order against both of his parents supported by affidavits which said such things as:

We have not restored relations with the Plaintiff [Belva and Maurice Baulne].  They have made some attempts to force us to restore relations.  However, both my wife and I feel so deeply hurt by the Plaintiff’s [sic] that we are not prepared to consider any form of reconciliation at this time. ...

[41]            Apparently after being served with the notice of motion, Belva and Maurice Baulne agreed to and eventually did personally sign a consent restraining order which was officially granted by the court on October 7th, 1997.  From that date and until the date of death of Belva and Maurice and Reese Baulne, there was no contact between the plaintiff and his parents, save and except that all three were present at the funeral of Maurice Baulne's mother.  There was also no contact between the plaintiff and his brother. 

[42]            I turn now to the law.  Section 2 of the Wills Variation Act, supra, provides as follows: 

Despite any law or statute to the contrary, if a testator dies leaving a Will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provisions that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children.

[43]            The leading case in British Columbia dealing with the Wills Variation Act, supra, is Tataryn v. Tataryn Estate (1994), 93 B.C.L.R. (2d) 145, a unanimous decision of the Supreme Court of Canada from 1994 written by Madam Justice, now Chief Justice, McLachlin.  The considerations which govern a court faced with an application to vary the provisions of a Will under s. 2 of the Wills Variation Act were clarified by the Supreme Court and the principles have continued to evolve since that decision.

[44]            Madam Justice Satanove in Clucas v. Clucas, [1999] B.C.J. 436 B.C.S.C., neatly summarized the considerations and principles as follows:

1.         The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators.  ...

2.         The other interest protected by the Act is testamentary autonomy.  In the absence of other evidence a Will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him.  It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only insofar as the statute requires.  ...

3.         The test of what is "adequate and proper maintenance and support" as referred to in s. 2 of the Act is an objective test.  The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society's reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards.  ...

4.         The words "adequate" and "proper" as used in s. 2 can mean two different things depending on the size of the estate.  A small gift may be adequate, but not proper if the estate is large.  ...

5.         Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children.  ...

6.         The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children.  But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made.  ...

7.         Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child's treatment during the testator's life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims.  ...

8.         Circumstances that will negate the moral obligation of a testatrix are "valid and rational" reasons for disinheritance.  To constitute "valid and rational" reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance.  ...

9.         Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant.  ...

(citations omitted)

[45]            The issues in this case are as follows.  Did the deceased have legal and/or moral obligations to the plaintiff?  If so, were there circumstances which negated those obligations, such as valid and rational reasons justifying the disinheritance?  If not, what variation of the Will is appropriate given an objective analysis, the competing aims of the legislation and society's reasonable expectations of what a judicious parent would do in these circumstances with reference to contemporary community standards? 

[46]            The starting point in cases such as this is normally the Will itself, particularly where the Will contains expressed reasons for disinheritance.  The Wills of Belva and Maurice Baulne mirror each other.  The Wills provided, in the first instance, that the entire estate would be paid to the other spouse.  If the other spouse was not surviving, the estate was to divide in half.  One half was to be held for Reese Baulne, with a gift over to the defendants.  The other half was to be divided equally between the six defendants. 

[47]            The Wills each contained an identical paragraph setting out the reasons for disinheriting the plaintiff which read:

I DIRECT my Trustee that I have made no provision within this my last Will and Testament for my son, CHAD DAVID BAULNE, as my said son has treated both myself and my said husband [or my wife] with complete disrespect over the years and that my said husband [or wife] and I have provided my son, CHAD DAVID BAULNE, and his husband -- that is a typographical error contained in the Will -- Paula Baulne, with a residence and substantial sums of money over the years on the provision that my son, CHAD DAVID BAULNE, would repay such sums of money which he has failed to do.  BE IT FURTHER recognized that my son, CHAD DAVID BAULNE, has refused to allow either my said husband [or wife] or myself to have contact with his child, our grandchild, and that it is my intention that due to the aforementioned behaviour of my son, CHAD DAVID BAULNE, he is undeserving of any further compensation from me or my estate. 

[48]            Pursuant to s. 5 of the Wills Variation Act, the court is entitled to consider the evidence it considers proper as to the testator's reasons, so far as ascertainable, for making the dispositions made in the Will or for not making adequate provision for a spouse or child.  This, of course, includes having reference to any statements contained in the Will itself. 

[49]            The first issue then is whether or not the deceased, Belva and Maurice Baulne, owed any legal or moral obligations to the plaintiff.  Although in opening plaintiff's counsel submitted that the evidence would establish a legal obligation, by the time of closing submissions only a moral obligation was being pressed.  I am satisfied on the evidence that the plaintiff has not proved a legal obligation was owed to him by his parents. 

[50]            With respect to a moral obligation, I accept as a general principle that unless circumstances negate the existence of a moral obligation, parents of adult independent children owe a moral obligation to make provision for their adult children if the size of the estate permits. 

[51]            In considering whether the size of the estate permits making provisions for adult independent children, it is always appropriate to consider other competing claims, particularly competing claims based on legal obligations or moral obligations to dependent spouses and children. 

[52]            On the facts of this case, there is no question that the moral claim of the plaintiff would have taken a backseat to his parents’ legal and moral obligations to each other and to his brother.  However, under the circumstances of the simultaneous deaths of Maurice, Belva and Reese Baulne, and the amount of the estate combined totalling close to $500,000.00, clearly the size of these estates permitted provision for the plaintiff. 

[53]            The central issue in this case then is whether there were circumstances which negated the moral obligation the plaintiff's parents otherwise owed him.  The reasons stated in the Will for the disinheritance were that:

(1)               The plaintiff treated his parents with complete disrespect;

(2)               The plaintiff and his wife had been provided with a residence and substantial sums of money on the provision that the plaintiff would repay such sums of money and he had failed to do so; and

(3)               The plaintiff had refused to allow them to have contact with their only grandchild.

[54]            I am unable on the evidence before me to find that the plaintiff treated his parents with complete disrespect such as to negate the moral obligations his parents otherwise owed him.  He, on his evidence and supported generally by the other evidence available to me, was a loyal son to his parents at least until 1993 when he and his wife were evicted from the manufactured home.  I will be dealing with the events and the effect of the events after 1993 shortly.

[55]            With respect to the second stated reason, it is clear that the plaintiff's parents did not provide the plaintiff and his wife with a residence.  The manufactured home was never registered in the plaintiff's name.  He paid the loan payments in exchange for being permitted to reside in the home and he was not permitted to take the manufactured home to another location when he was evicted from his parents' property.  Consequently, that part of the reasons was not based on true facts.

[56]            With respect to the advancement of substantial sums of money, I accept that the plaintiff's parents incurred expenses in the neighbourhood of $45,000.00 to $50,000.00 in purchasing the manufactured home, renovating it and paying out the plaintiff and his wife's car loan.  To the extent those sums related to the manufactured home, I cannot conclude that they were sums “provided to the plaintiff and the wife”.

[57]            However, the car loans were clearly obligations of the plaintiff and his wife, were discharged for them by the plaintiff's parents and were not repaid by the plaintiff or his wife.  Consequently, I accept that at least the value of the car loans, which I accept were in the range of $10,000.00 to $11,000.00, were sums provided to the plaintiff and his wife.  I do not, however, consider that the advancement of that sum of money is a sufficient reason or justification to completely negate the moral obligation owed by the deceased to their son. 

[58]            Finally, I turn to the third reason, namely the refusal on the part of the plaintiff to permit his parents to see Justine.  As I understand the submissions made on behalf of three of the defendants, if I conclude that this reason is true in fact and logically connected with the act of disinheritance, notwithstanding any basis for the refusal, the plaintiff's claim should be dismissed. 

[59]            I do not accept that the law is applied in that way.  Where a reason for disinheritance is based on fact, such as a long-standing estrangement, the court should be and is prepared to consider how the estrangement occurred and, in essence, to consider questions such as fault or blame for the estrangement. 

[60]            Similarly, in this case, although the refusal on the part of the plaintiff to permit his parents to see their only grandchild is fact, I must, in my view, consider the evidence of the events leading up to that refusal in order to arrive at a conclusion as to whether that fact negates the moral obligations otherwise owed by the deceased for their son.

[61]            As I said earlier, a significant majority of the evidence in this tragic case related to the gradual destruction of the plaintiff's relationship with his parents.  Certainly the tenure of the plaintiff's evidence, as I said earlier, was that virtually all of the fault or blame for that destruction of the relationship lay with his mother, with perhaps a small part being attributable to his father, particularly for failing to get help himself, failing to insist that his wife get help and failing to stand up to his wife when she took certain positions or actions. 

[62]            It was the plaintiff's evidence that his mother consistently refused to take any responsibility for her own actions.  Having heard his evidence and having watched him testify, I have concluded that the plaintiff does not take much, if any, responsibility for the estrangement either, although there were clearly some points at which the plaintiff could have taken steps to prevent escalation of the tensions, which I accept were being driven primarily by the plaintiff's mother and by her need to have more involvement with her grandchild than she was being permitted. 

[63]            Although not much can be gained by engaging in speculation as to what would or might have happened if a different approach had been taken to any given event, I do consider that some fault for the eventual complete estrangement lays with the plaintiff. 

[64]            He could, once access was apparently successfully initiated in early 1996, have followed up and scheduled another visit rather than wait until his mother called to ask for access some six months later.  The letter following the last access visit could have been more thoughtfully composed.  The plaintiff's mother's plea to him at his work place that the plaintiff consider counselling with them could have been met with a better response. 

[65]            The obtaining of the restraining order, I am satisfied, was an overreaction to what had taken place to that date and there was, I am equally satisfied, no basis for the expression of any fear that the plaintiff's mother would try to take Justine away from the plaintiff and his wife or from her school without notice.

[66]            The restraining order foreclosed any opportunity the plaintiff's parents would otherwise have had to try to mend the relationship.  The plaintiff took no steps himself over the four years between the date the restraining order was granted and the date of his parents’ and brother's death to try to mend the relationship. 

[67]            Taking all of the evidence into account and being satisfied that Belva and Maurice Baulne loved and had special relationships with children in general and that they longed for a relationship with their only grandchild, I am still unable to conclude that the plaintiff's refusal to allow them to have contact with their grandchild completely negated the moral obligation they owed to the plaintiff.

[68]            Consequently, I am satisfied that the plaintiff has established the existence of the moral obligation and that the obligation has not been negated.  As I stated earlier, the estate was of sufficient size to permit provision to have been made for the plaintiff.

[69]            Given those conclusions, I am satisfied that the Wills of Belva and Maurice Baulne did not make adequate provision for the plaintiff. 

[70]            What provision, then, is adequate, just and equitable?  In answering that question, I consider that I must take into account the relationship that Maurice and Belva Baulne had with the six defendants, to the extent that I heard evidence about that; the need to protect testamentary autonomy or at least to interfere with it only insofar as the Wills Variation Act requires; and the needs of the plaintiff, who at this stage is steadily employed, as is his wife, with a combined income of between $60,000.00 and $70,000.00 per year with modest assets and apparently manageable debt, and that the plaintiff is incurring some special expenses with respect to Justine's schooling. 

[71]            I also consider that the reasons for disinheritance as expressed by the plaintiff's parents, although not sufficient to support complete disinheritance, can and should be taken into account in determining objectively what society's reasonable expectations of what a judicious parent would do in the circumstances. 

[72]            The evidence from the three defendants who have argued that the Will should be upheld was that each enjoyed a close relationship with Maurice and Belva Baulne and would likely have, by their continued support, provided comfort to them at a time when they clearly would have needed it.  In particular, the defendant, Gerald Burtch and his wife, who moved into the manufactured home after the plaintiff was evicted, and whose children were very close to the deceased, satisfied me that there was a special bond which clearly the deceased chose to recognize not only by naming him as a beneficiary but also by naming him as their executor.

[73]            The other two defendants who testified also satisfied me that they were close to the deceased and logical beneficiaries to their estates. 

[74]            Taking the competing interests into account, bearing in mind that the main aim of the Act is the adequate, just and equitable provision for the spouse and children of testators, and considering the size of the estates, I have concluded that the adequate, just and equitable provision for the plaintiff in this case is sixty percent of the net estate of each of his parents. 

[75]            The remainder, as has been agreed between the defendants, shall be divided equally amongst the six named beneficiaries. 

[76]            All counsel asked at the end of submissions that I make no determination as to costs at this stage and that I reserve to them the right to make submissions on costs if required.  Consequently counsel will have the right to speak to costs if required. 

[77]            That concludes my reasons.


The Honourable Madam Justice Beames