Marriage Like Relationship Criteria

marriage like relationships2The Courts have come to grips with the criteria that constitutes marriage like relationships, although some children of a deceased continue to have trouble accepting same, and often attempt to diminish the relationship or even call it something else altogether , such as landlord and tenant rather than marriage like.

The criteria generally speaking for a marriage like relationship are as follows, as recently laid out in  McFarlane v. Goodburn Estate 2014 BCSC 1449:

The question of whether a couple is to be regarded as having had a marriage-like relationship can be answered having regard to objective and subjective criteria.

The nature of the objective test and its limitations were described by Justice Cory in M. v. H., [1999] 2 S.C.R. 3, at para. 59:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. … In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
22      In my view, there were sufficient objective indicators in this case for the couple to be regarded as spouses. They shared the plaintiff’s home and they shared her bed. The plaintiff provided care and support to Mr. Goodburn to the degree and in the manner of someone who was more than simply a friend. In their interactions with members of her family, and in their other social interactions, they would have appeared to function as a unit.
23      The subjective test, based on the court’s assessment of the parties’ degree of mutual commitment, is as stated by Justice Lambert in Gostlin v. Kergin (1986), [1986] 5 W.W.R. 1, 3 B.C.L.R. (2d) 264 (C.A.). Referencing the support obligations set out in s. 57 of the Family Relations Act, R.S.B.C. 1979, c. 121, he stated:
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 disable 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.
24      As with any civil case, this aspect of the plaintiff’s claim need only be proven on a balance of probabilities. In my view, the reasonable conclusion to be drawn from the facts of this case is that the answer to that question would have been “Yes”.

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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