Spouses In Marriage Like Relationship Despite Separate Residences

 

Re Richardson Estate 2014 BCSC 2162 involves a post WESA decision re a dispute on an intestacy between the deceased’s brother and his purported common law spouse, as to who would inherit the entire estate.

Richardson reviews the law on marriage like relationships, including those where the parties lived in two houses, in two different locations, but were still found to be living in a marriage like relationship.

 

(a)      Was there a marriage-like relationship?

[19]         Section 130(a) of WESA states that, if a person dies without a will, administration of the deceased person’s estate may be granted to “the spouse of the deceased person …” The applicant says she is the spouse of Mr. Richardson; the disputant disagrees.

[20]         Section 2 of WESA defines a spouse as follows:

When a person is a spouse under this Act

2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship for at least 2 years.

[21]         If the applicant is the spouse of Mr. Richardson s. 20 of WESA applies:

Spouse but no descendants

20 If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.

[22]         A leading authority with respect to the meaning of “marriage-like relationship” (sometimes also referred to as “cohabitation”, Campbell v. Campbell, 2011 BCSC 1491 at para. 80) is Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (ONDC):

[16] I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:

(1)   SHELTER:

(a)   Did the parties live under the same roof?

(b)   What were the sleeping arrangements?

(c)   Did anyone else occupy or share the available accommodation?

(2)   SEXUAL AND PERSONAL BEHAVIOUR:

(a)   Did the parties have sexual relations? If not, why not?

(b)   Did they maintain an attitude of fidelity to each other?

(c)   What were their feelings toward each other?

(d)   Did they communicate on a personal level?

(e)   Did they eat their meals together?

(f)     What, if anything, did they do to assist each other with problems or during illness?

(g)   Did they buy gifts for each other on special occasions?

(3)   SERVICES:

What was the conduct and habit of the parties in relation to:

(a)   Preparation of meals,

(b)   Washing and mending clothes,

(c)   Shopping,

(d)   Household maintenance,

(e)   Any other domestic services?

(4)   SOCIAL:

(a)   Did they participate together or separately in neighbourhood and community activities?

(b)   What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)   SOCIETAL:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)   SUPPORT (ECONOMIC):

(a)   What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b)   What were the arrangements concerning the acquisition and ownership of property?

(c)   Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7)   CHILDREN:

What was the attitude and conduct of the parties concerning children?

[23]         Other authorities have emphasized that this is not a checklist and “these elements may be present in varying degrees and not are all necessary for the relationship to be found conjugal” (M. v. H., [1999] 2 SCR 3 at para. 59; cited in Austin v. Goerz, 2007 BCCA 586 at para. 57; the Court of Appeal equated “conjugal” with “marriage-like” in the same paragraph).

[24]         In Austin, at para. 58, the Court of Appeal also adopted the following statement from a Saskatchewan case (Yakiwchuk v. Oaks, 2003 SKQB 124):

[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. …

[42]         Other decisions make it clear that there can be cohabitation for the purposes of determining a marriage like relationship in two residences. Mr. Justice Groves usefully set out the law on this point in Campbell v Campbell 2011 BCSC 1491:

[82] In their submissions, both counsel focused on the extent to which the relationship between the parties could be characterized as “marriage-like” prior to their marriage. In doing so, both counsel seemed to suggest that a finding of a marriage-like relationship necessarily includes a finding that the parties were also “cohabiting” …

[83] With this in mind, I am satisfied that for the purpose of these proceedings, my conclusion that the parties were in a marriage-like relationship as of January 2004 encompasses a finding that the parties were cohabiting as of that time.

[84] I have already described that the law is clear that living under one roof is not a prerequisite to finding that two individuals were living in a marriage-like relationship. In Roach, for example, the parties were deemed to be “spouses”, and thus living in a marriage-like relationship, for a period of time where they maintained separate residences. Therefore, if an individual can be “living with another person in a marriage-like relationship” while maintaining separate residences, I am of the view that parties can “cohabit” albeit in separate residences. In my view, there is essentially no difference between using the words “living with” as opposed to “cohabiting with” under s. 1 of the FRA [Family Relations Act].

[85] “Cohabitation” is defined in Black’s Law Dictionary (9th ed.) as “the fact or state of living together, especially as partners in life, usually with the suggestion of sexual relations”. This is similar to the definition of “cohabit” under s. 1(1) of the Family Law Act, R.S.O. 1990, c. F.3 [FLA] (Ontario’s equivalent to the FRA), which reads: “cohabit” means to live together in a conjugal relationship, whether within or outside marriage”.

[86] Desmarais J. in Boothe v. Gore, [1996] O.J. No. 4376 at para. 11, 20 O.T.C. 207 (Ct. J. Gen. Div.), considered s. 1(1) of the FLA and confirmed that “cohabit” means to live in a “marriage-like relationship”. Similarly, in Wheatley v. Wheatley, [1949] 2 All E.R. 428 at 430 (K.B.D.), Goddard C.L.J. held:

The cohabitation of two people as husband and wife means that they are living together as husband and wife, … They are living together, not merely as two people living in one house, but as husband and wife.

[87] These authorities suggest that the focus of the inquiry is on whether the parties were in a “marriage-like” relationship. Based on such a finding, in my view and as supported by these authorities, I am satisfied that the parties in this case were “cohabiting” as a marriage-like couple by January 2004.

[43]         Similarly, in Ingrouille, at para. 98, a finding that one party had farmed and maintained a dual residence were considered of modest weight (along with mailing addresses, tax returns and other matters) in the analysis of whether there was a marriage-like relationship.

[44]         And our Court of Appeal adopted the following statement from another decision of Mr. Justice Groves (Roach v. Dutra, 2010 BCCA 264, para. 17; citing McColl v. Scott, 2001 BCSC 1109 at paras. 18-19):

… 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.