“Marriage Like Relationship” Upheld

The criteria for a marriage like relationship was upheld in the Duga case.marriage like relationship

The courts have been grappling with the often difficult to determine issue of what is a marriage like relationship for several years. Many of the earlier decisions were difficult to reconcile, especially when it became clear that a goodly number of parties have rather untraditional manners of living in a marriage like relationship.

The trial Judge found the following facts:

“The evidence of their continuing emotional commitment to each other [after they began living in separate houses in November 2003], their continuing mutual expectations of fidelity, their continuing presentation to friends and family as a couple, and their joint vacations all militate in favour of finding that the parties intended to continue their marriage-like relationship.

Between the fall of 2003 and September 2006, Mr. Dutra continued to provide economic support to Ms. Roach. He gave her cash from time to time and paid her telephone and hydro bills for the Page Two property. Throughout their relationship, Mr. Dutra permitted Ms. Roach to use his bank card to make purchases for herself, for her own children, and to purchase groceries and household items.

Before and after the plaintiff moved to the Page Two property, Ms. Roach and Mr. Dutra provided care to each other’s children. Mr. Dutra developed a close relationship with the plaintiff’s daughter, and became a father figure to her. Mr. Dutra’s children went camping with the plaintiff and her children.

Until September 2006, when they separated, the plaintiff and the defendant continued their marriage-like relationship. They saw themselves, and were seen by others, to be a couple who were engaged to be married. Mr. Dutra willingly provided financial support for Ms. Roach and she, with his consent, continued to be economically dependent upon him during the time they maintained separate residences. Their mutual expectations of fidelity continued after the acquisition of the Page Two property. They continued to share their lives, and intended to live in a marriage-like relationship. The plaintiff and the defendant were “spouses” within the meaning of subsection (b) of the definition of that term in s. C(1) of the FRA until they separated in mid-September 2006. “

The appeal court upheld the trial judge’s finding that the parties were in fact in a marriage like relationship for three years.

The Law:

Section 1(1) provides, in part:

1.(1) In this Act:

“spouse” means a person who

(a) …

(b) … lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together, and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,

[12] In addressing the issue of whether the parties were spouses within the meaning of s. 1(1), the trial judge engaged in a detailed analysis of all aspects of the parties’ relationship. He canvassed numerous authorities, including Gostlin v. Kergin (1986), 1 R.F.L. (3d) 448, 3 B.C.L.R. (2d) 264 (C.A.); Takacs v. Gallo (1998), 157 D.L.R. (4th) 623, 48 B.C.L.R. (3d) 265 (C.A.), leave to appeal dismissed, [1998] S.C.C.A. No. 238; and Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). He also considered authorities which dealt with situations in which the parties were found to have lived in a marriage-like relationship despite having lived separately for extended periods, including McColl v. Scott, 2001 BCSC 1109, and Roch v. Payne, [1999] B.C.J. No. 2739 (S.C.).

[13] As earlier stated, Mr. Dutra does not now dispute that he and Ms. Roach lived together in a marriage-like relationship for approximately three years from December 2000 to November 2003. The question is whether the nature of their relationship changed in November 2003 when the parties decided to live in separate residences, albeit five minutes apart. Mr. Dutra submits that when this move occurred, the relationship ceased being marriage-like. In the alternative, he submits that, even if the parties’ relationship could in other respects be regarded as marriage-like, Ms. Roach no longer qualified as a spouse within the meaning of s. 1(1) since the parties were no longer living together. In short, Mr. Dutra submits that, in order to qualify as a “spouse” within the meaning of s. 1(1), not only does the parties’ relationship have to be marriage-like, but the parties also have to be living together, or, at the very least, intending to live together.

[14] It is clear from the trial judge’s reasons that he did not accept that the mere fact that the parties began to live in separate residences in these circumstances changed the fundamental nature of their relationship from marriage-like to non-marriage-like. In that regard, he referred to Ms. Roach’s evidence that the intention of the parties in making this change was to strengthen their relationship, not to end it, or transform it into something fundamentally different than it was before.

[15] The trial judge set out many, but not all, of the factors upon which he relied in concluding that the parties were spouses after November 2003 at paras. 91-94 of his decision:

… The evidence of their continuing emotional commitment to each other [after they began living in separate houses in November 2003], their continuing mutual expectations of fidelity, their continuing presentation to friends and family as a couple, and their joint vacations all militate in favour of finding that the parties intended to continue their marriage-like relationship.

Between the fall of 2003 and September 2006, Mr. Dutra continued to provide economic support to Ms. Roach. He gave her cash from time to time and paid her telephone and hydro bills for the Page Two property. Throughout their relationship, Mr. Dutra permitted Ms. Roach to use his bank card to make purchases for herself, for her own children, and to purchase groceries and household items.

Before and after the plaintiff moved to the Page Two property, Ms. Roach and Mr. Dutra provided care to each other’s children. Mr. Dutra developed a close relationship with the plaintiff’s daughter, and became a father figure to her. Mr. Dutra’s children went camping with the plaintiff and her children.

Until September 2006, when they separated, the plaintiff and the defendant continued their marriage-like relationship. They saw themselves, and were seen by others, to be a couple who were engaged to be married. Mr. Dutra willingly provided financial support for Ms. Roach and she, with his consent, continued to be economically dependent upon him during the time they maintained separate residences. Their mutual expectations of fidelity continued after the acquisition of the Page Two property. They continued to share their lives, and intended to live in a marriage-like relationship. The plaintiff and the defendant were “spouses” within the meaning of subsection (b) of the definition of that term in s. 1(1) of the FRA until they separated in mid-September 2006.

[16] In my view, there is no basis for interfering with the trial judge’s conclusion that the parties were spouses within the meaning of s. 1(1) of the FRA ( Family Relations act). The question of whether parties are living in a marriage-like relationship is largely fact-driven and depends on the individual circumstances of each case. Here, I am satisfied that the trial judge properly applied the legal test set out in s. 1(1) of the FRAin relation to the unique facts before him. His findings of fact turned, in part, on findings of credibility. In that regard, the trial judge found that Mr. Dutra tended to minimize the extent of his commitment to the relationship. At para. 51 of his decision, the trial judge stated:

The defendant [Mr. Dutra] also asserted that the relationship only lasted for another three or four months after he gave Ms. Roach the two rings in the summer of 2004. I reject Mr. Dutra’s evidence on this point. I accept the testimony of the plaintiff that the parties continued their relationship after they purchased the Page Two property, and remained a couple, despite strains in the relationship from time to time, until September 2006. …

[17] I am not persuaded that the wording of s. 1(1) precludes a finding that these parties, who had been living in a marriage-like relationship for three years, cannot be found to be spouses within the meaning of that section simply because they began living in separate residences with a view to preserving their relationship. In adopting the trial judge’s conclusion in that respect, I agree with the following passage at paras. 18-19 of the reasons for judgment of Master Groves (as he then was) in McColl, where, in dealing with a similar argument, he stated:

… Clearly the words, “live together” must be read in the context of the entire section where it talks earlier about living with another person in a marriage-like relationship for a period of two years. To suggest that if parties are by reasons of, say, health, hospitalization, overseas attendance in the military or for general work purposes, as is the case here, temporarily separate that the “spousal definition clock”, for lack of a better term, then starts running, would result in numerous couples essentially ceasing to be spouses as a result of this temporary separation. The legislature in my view would have to make that intention clear.

If for all purposes mere physical separation ends a “marriage-like” relationship, clear wording to that effect would be required. The general purpose of the Family Relations Act is to recognize spouses who make a commitment to one another and to apportion support consequences of that commitment between them upon relationship breakdown. The legislation requires that they live in a marriage-like relationship of at least two years. To say that all marriage-like relationships involve continuous cohabitation, that a temporary interruption for health or work reasons in that continuous cohabitation ends a spousal relationship, is not in my view what the legislature intended.

[18] In that case, Master Groves found that the parties continued to view themselves as spouses and expected their relationship to continue as such despite their physical separation.

[19] In this case, however, Mr. Dutra says that there is no evidence that the parties separated with the intention of resuming cohabitation and that their choice to live in separate residences was not imposed by external circumstances such as illness or work-related demands.

[20] It is apparent, however, that the trial judge accepted that the parties decided to live in separate residences as a temporary measure to alleviate the tensions between Ms. Roach and Mr. Dutra’s teen-age daughter. It is implicit in his reasons that he accepted Ms. Roach’s evidence that the purpose of the move was to maintain the relationship, not to change its essential nature. In effect, it could be said that the parties continued to live together in a marriage-like relationship, but in two homes, rather than one. The trial judge found that they continued to relate to one another in much the same way as before; that is, as spouses.

[21] In effect, Mr. Dutra is asking this Court to retry the issue of whether the parties were spouses within the meaning of s. 1(1). In the absence of significant and identifiable error on the part of the trial judge, and I find none, there is no basis for doing so. There is no doubt that the facts of this case were unusual given the period that the parties lived under separate roofs before their relationship ended, but there were numerous indicia which supported the trial judge’s conclusion that they were, nonetheless, spouses within the meaning of s. 1(1) and that they regarded themselves as such until their relationship ended in September 2006. As Mr. Justice Frankel stated, in speaking for the Court in Austin v. Goerz, 2007 BCCA 586, at para. 58, “there is no checklist of characteristics that will invariably be found in all marriages.”

[22] Since I have concluded that the trial judge was correct in finding that the parties lived together in a marriage-like relationship within the meaning of s.1(1) of the FRA until September 2006, it follows that Ms. Roach brought her application for spousal support within the one year limitation period set forth in that section.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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