Early Vesting v Contingent Gifts

Early vestingIn order to determine the date at which the recipients of the interest are determined, it is necessary to determine whether the gift was vested or contingent

A contingent interest is one that is subject to the happening of an event that may never occur.

A vested interest, on the other hand, is one the enjoyment of which is merely postponed, though it may be subject to subsequent divestment: see James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed, looseleaf (Markham, Ontario: Butterworths, 2000-) at para. 17.2.

In other words, if the gift is subject to a condition precedent, then it is contingent; if it is subject to a condition subsequent (which will cause the interest to be divested if the condition is met), then it is vested subject to divestment. In this case, if the gift was contingent, the recipients would be determined as of the date the contingencies were satisfied. If it was vested, the recipients would be determined as of the date of the testator’s death.

A condition precedent establishing a contingent interest does not necessarily have to be personal to the donee; it can be a condition that some other person do some act or some other donee survive to a certain time: see Feeney’s Canadian Law of Wills at para. 17.6.

Usually, where the gift is contingent, the words of the condition precedent will be introduced by the word “if”: McKeen Estate v. McKeen Estate (1993), 132 N.B.R. (2d) 181, 49 E.T.R. 54 (Q.B.).

Where there is a gift-over in the event of death coupled with a contingency, such as “in the event of A’s dying without issue”, the gift-over will take effect when A dies and the contingency is satisfied:

Fraser v. Fraser (1896), 26 S.C.R. 316; Re Hildreth (1923), 54 O.L.R. 139 (C.A.); see also Re Fairfoull (1973), 41 D.L.R. (3d) 152 (B.C.S.C.), aff’d on reconsideration [1974] 6 W.W.R. 471, 18 R.F.L. 165 (B.C.S.C.).

The presumption of early vesting is that, wherever the words used in a will permit a construction that results in early vesting, the gift will be vested rather than contingent: Hamilton v. Hart (1919), 27 B.C.R. 101, 47 D.L.R. 231 (C.A.); Re Taylor, [1972] 3 O.R. 349, 28 D.L.R. (3d) 257 (H.C.J.).

Consistent with this presumption, where there is doubt as to whether a condition is intended to be a condition precedent or a condition subsequent, the court should prima facie treat it as a condition subsequent: Sifton v. Sifton, [1938] A.C. 656, [1938] 3 D.L.R. 577 (P.C.).

However, the presumption only applies where the court has some doubt as to the testator’s intention: Re Fraser (1986), 55 O.R. (2d) 268, 29 D.L.R. (4th) 88 (H.C.J.); Henderson v. Henderson Estate (1990), 73 O.R. (2d) 616, 38 E.T.R. 120 (Ont. H.C.).

The rule in Browne v. Moody states that a gift of the remainder will be treated as vested if (a) it is postponed in the will solely for the convenience of the testator’s estate or (b) it is postponed by the creation of some prior interest, such as a life estate: see Re Thompson, [1974] 1 W.W.R. 289, 41 D.L.R. (3d) 305 (B.C.S.C.) and Re Ross (1984), 6 D.L.R. (4th) 193 (B.C.S.C.).

Certainty of Subject Matter In Trusts

One of the three requirements of a valid trust is the “certainty of the subject matter”,

There are two elements to certainty of subject matter:

  • First, the property which is subject to the trust must be clear.
  • Second, the nature of the interest due to each beneficiary must be clear.

To satisfy the first of the two elements, the subject matter must be described with “sufficient exactness to permit that such matter be ascertained at the time the trust was created”: Re Beardmore Trusts, [1952] 1 D.L.R. 41 at 46 (Ont. H.C.) [Beardmore].

Clearly, the subject matter must also be certain on future dates when the trustees are required to deal with the trust property. However, the trust property need not be fixed in quantity or nature; property can be added later, and the nature of existing property may be changed by the trustees exercising their power of investment. If the initial trust property is certain, and the property which may be added is certain, then the subject matter is certain because at any point the current trust property can be determined by tracing the original property to its current form: Waters at 155 -156.

The second element of certainty of subject matter requires that it be clear what beneficial share each beneficiary will receive in the trust property: Boyce v. Boyce (1949), 60 E.R. 959 (C.A.).

Trustees Must Not Co-Mingle or Misuse Estate Funds For Their Own Purpose

trustess not co mingleTrustees must not co mingle or misuse estate funds or assets  for their own purposes.

It is trite law that trustees are fiduciaries and must not personally use, profit from, or co-mingle estate funds with their own.

If a trustee has mixed his/her own funds with the funds being held
for another, all of the property must be taken to be the other’s property until the trustee is able to prove what part of it is his/her own: Widdifleld on Executors and Trustees, above, at p. 13-2; Norman, Re, [1951] O.R. 752, [19521 1 D.L.R. 174 (Ont. C.A.) at p. 5; Cook v. Addison (1869), L.R. 7 Eq. 466 (Eng. Ch. Div

It is an “inflexible rule of the Court of Equity” that a fiduciary must not make a profit or to
put himself/herself in a position where his/her interests and his/her duty conflict unless the trust
instrument expressly so provides: Simone v. Cheifetz, [1998] O.J. No. 3267, 74 O.T.C. 18 (Ont.
Gen. Div.) at para. 47, citing Bray v. Ford (1895), [1896] A.C. 44 (U.K. H.L.); Bikur Cholim

Jewish Volunteer Services v. Langston, [2007] O.J. No. 3667,160 A.C.W.S. (3d) 921 (Ont. S.C.J.), at paras. 30 and 31. As a fiduciary, an attorney for property is not entitled to exercise that power for his or her own benefit unless expressly authorized to do so: Howlader v. Alamgir, [2006] O.J. No. 2575,149 A.C.W.S. (3d) 275 (Ont. S.C.J.)

The trustee, not the beneficiaries, bears the onus of establishing that the management and disbursement of funds is consistent with the terms of the trust: Maintemp Heating & Air Conditioning Inc. v. Momat Developments Inc. (2002), 59 O.R. (3d) 270, [2002] O.J. No. 2722 (Ont. S.C.J.).

A trustee who improperly enjoys the benefit of trust assets without authority and allows non-beneficiaries (e.g. the trustee’s family) to also benefit is liable to the trust for the amounts or the value of the benefits received: Waters’ Law of Trusts in Canada, above, at p. 877; Bikur Cholim Jewish Volunteer Services v. Langston, above, at paras. 13 to 16 and 38, affd (2008), 90 O.R 3d) 673, [2008] O.J. No. 1582 (Ont.

Trust For Care of Deceased’s Cats Held Valid

Deceased’s Cats

In Zinn v Bergen 2012 SKQB 214, the deceased left a five page typewritten will dated July 7, 2003 wherein he made several specific bequests, and asked to convert the rest and residue of the estate into cash for the purpose of initially maintaining feeding and caring for his pet animals (but not their offspring), until their death, which presently consisted of four cats. Upon the death of the cats than the residue was to be distributed to two charities.

The deceased subsequently signed a handwritten codicil, which was mostly almost illegible, but dated June April 19, 2011. The first two sentences of the codicil were significant in that they stated :

“This is a supplement to my will that made on July 7, 2003. The main part of the 2003 seventh of July remained the same.

My cats come first– after my expenses are paid been plenty of money for the cats”

The codicil did not purport to revoke any portion of the will, and accordingly the court admitted both documents into probate. Following the decision of Oh v Robinson 2011 SKQB 374,which held “the fact that some of the portions of the will may be in illegible or incomprehensible does not disqualify or prohibit the remaining portions of the will from satisfying the legal requirements for probate.”

 

The Law

 

The Court found that the testator gives clear expression of an intention to provide for his four cats following his death. He did so by purportedly creating a trust from the
residue “for the purpose of maintaining, feeding and caring for my pet animals,
(but not any off-spring thereof) until their death”, to “find a good home” forthem, and to “pay whatever reasonable amounts may be necessary and advisable from time to time to provide for the maintenance and care of my pets.”

The Codicil reinforces this predominant motivation with the statement “my cats come first”. He goes on “After my expenses are paid then plenty of money for the cats, including medical service and if deemed necessary declawing expenses.”… “The house will likely be used to pay for the cats home and the expenses. … The (house) must not be sold until after the cats are comfortable.”
This purported trust raises obvious questions about its validity (A. J.
Oakley, Parker and Mellows: The Modern Law of Trusts, 9th ed., (London: Sweet & Maxwell, 2008) at pps. 82 and 83 offer these insights:

3-102 Gifts for the maintenance of animals in general are charitable. However, gifts for the maintenance of one or more particular animals are not; … Re Dean is an explicit authority — not all the early cases in this area of the law are particularly explicit — that a non-charitable purpose trust for the upkeep of a given animal may be valid notwithstanding the fact that by its nature it is not enforceable by the beneficiary.

Relying upon these authorities, I find the trust valid. The executors are directed to retain the sum of $10,000.00 dedicated to the exclusive purpose of care, maintenance and health needs of the testator’s cats. Upon the death of the last of the four cats, the balance of this fund shall be disbursed as residue.

The Requirements of a Valid Inter Vivos Transfer to a Trust

The Requirements of a Valid Inter Vivos Transfer to a Trust

 

The decision Mordo v Nitting 2006 BCSC 1761 is a primary source on many aspects relating to trusts. Morodo was suing to set aside an alter ego trust settled by his mother in favour of his sister, and utilized just about every legal argument on the subject that could have been made, including this one.

 

[263] To form a valid inter vivos trust, there must be a valid act of transfer to a clearly identified trustee.

[264] It is clear from the Trust Indenture that Mr. Wilson was to be the original Trustee. Further, a Form A transferring the Warehouse to Mr. Wilson “as Trustee” was executed by Eida on September 5, 2000. Accordingly, in this case, the identity of the Trustee was clear.

[265] However, the creation of a valid inter vivos trust requires a valid act of transfer to that clearly

identified trustee. In this case, was it enough for Eida to complete the Form A and hand it to Mr. Wilson, or was it also necessary to register the Form A before the Trust came into existence? As noted, Mr. Wilson did not register the Form A until after Eida’s death for property tax reasons.

Legal authorities concerning the requirements for a valid transfer

[266] The rule as to the formation of a valid trust was stated in Milroy v. Lord (1862), 45 E.R. 1184 (C.A.) [Milroy]:

[l]n order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him (Milroy at 1189).

[267] In Milroy, the trustee was given share certificates and a power of attorney under which he

could transfer the shares into his name. The shares were such that legal title did not pass until the new owner’s name was entered in the share register; that was not done until after the settlor’s death. The court concluded it was not sufficient that the trustee was capable of transferring the shares. The transaction was incomplete without the actual transfer having occurred. The court would not compel the agent of the settlor to complete the transfer because it could not compel the settlor to complete the transfer:

Equity could not, I think, decree the agent of the settlor to make the transfer, unless it could decree the settlor himself to do so, and it is plain that no such decree could have been made against the settlor (Milroy at 1190).

[268] The court in Milroy refused to hold that the settlor held the legal title on trust for the trustee:

[T]here does not appear to me to be any sufficient ground to warrant us in holding that the settlor himself became a trustee of these bank shares for the purposes of this settlement (Milroy at 1190).

[269] In the case of Re Rose, [1952] Ch. 499, [1952] 1 All E.R. 1217 (C.A.) [Re Rose] the English

Court of Appeal distinguished Milroy and found a valid trust. In Re Rose, the registration of the shares could not be completed until the board of directors approved the transfer. The court concluded that the settlor had done all that he could by completing the documentation and forwarding it to the board for approval, and accordingly held that legal title passed before registration, when the settlor gave up possession of the documents.

[270] In Fenton v. Whittier (1977), 26 N.S.R. (2d) 662 at paras. 86 to 96; 40 A.P.R. 662 (S.C.)

[Fenton], the Nova Scotia Supreme Court, considering Re Rose, concluded there was no inter vivos gift of shares. Although the donor had completed the share transfer forms, she kept them in a safety deposit box until her death because she wanted the benefit of the dividends during her lifetime. The court concluded that the donor intended the gift to take effect only upon her death.

[271] In Pennington v. Waine, [2002] 1 W.L.R. 2075, [2002] EWCA Civ 1587 an aunt intended to

make a gift of shares to her nephew. However, the share register was not updated with the name of the new owner and the donor kept the completed share transfer forms rather than handing them to her nephew. On a strict application of the principle in Re Rose, there was no valid inter vivos gift. However, the English Court of Appeal held that it would have been unconscionable for the executors of the giftor to refuse to hand over the share certificates, and found that the gift was valid. In so concluding, the court relaxed the rule in Milroy and imposed a trust on the settlor such that she held the legal title to the shares in trust for the trustee until the transfer of ownership was completed.

[272] In Bank Leu AG v. Gaming Lottery Corp. (2003), 231 D.L.R. (4th) 251 at para. 56 (Ont.

C.A.) Weiler J.A. (for the court), referring to Pennington, affirmed the principle in Re Rose that a transfer may be valid notwithstanding that the transferee must perform further acts to complete the transfer.

[273] The foregoing cases deal with the transfer of shares. As noted in Milroy, what constitutes “everything necessary” to achieve an effective transfer depends on the nature of the property being settled. In the case of real property, what is “everything necessary” to effect a transfer?

[274] In Mascall v. Mascall (1989), 50 P. & C.R. 119 (C.A.) the plaintiff father applied for a

declaration that a transfer of real property to his son, the defendant, was invalid. The plaintiff had completed the land transfer forms and handed them to the defendant, anticipating that any further steps concerning the forms would be taken by the defendant. At the time of the plaintiffs death, the defendant had not yet registered the forms. The English Court of Appeal, applying Re Rose, found that the plaintiff had done all that he could to complete the transfer and therefore the transfer was complete. In the result, the son was the holder of legal title despite registration having not yet taken place.

[275] The acts necessary to affect a valid transfer of land is more a question of the legislation governing land transfers than a matter of trust law: The Australian Law Journal, [1968] A.L.J. Vol. 42 at 227. Section 20 of the Land Title Act, R.S.B.C. 1996, c. 250 [Land Title Acf\ deals with the transfer of land in British Columbia:

20. Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act.

[Emphasis added]

[276] In Davidson v. Davidson, [1946] 2 D.L.R. 289 (S.C.C), affg [1945] 2 W.W.R. 576 (B.C.C.A),

the Supreme Court of Canada, considering language of the Land Title Act almost identical to that now contained in s. 20, held that an unregistered transfer of land took effect on the day the transfer was executed and not on the day it was registered. More recently, in Chung Estate v. Chan (1995), 4 B.C.LR. (3d) 370 (S.C.) [Chung], affd (1995), 13 B.C.LR. (3d) 157 (C.A.) the court held that if the transferor has properly completed a freehold transfer form, the opening words of s. 20 – “except as against the person making it” – apply such that the form may be registered after the transferor’s death to effect a transfer of the property.

[277] Chung was distinguished in the case of Kovacs v. Tuteckyj (2000), 147 Man. R. (2d) 161,

2000 MBQB 104 [Kovacs]. In Kovacs, the transferor had executed the transfer form and given it to another, but instructed that it not be registered until after he had consulted with his solicitor. The court held that the intention of the transferor at the time he handed over the transfer form was relevant. The court drew the inference from the circumstances that the transferor had not done everything necessary to complete the transfer and, as such, the transfer was not complete.

[278] As the foregoing case law indicates, the intention of the transferor is crucial. If the transferor intends to transfer the property, the transfer will be complete when the transferor has relinquished control of the property and put the transferee in a position to complete the transfer. The importance of control was discussed in Re Evans, Royal Trust Co. v. Lloyd’s Bank Ltd. (1956), 7 D.L.R. (2d) 445 (B.C.S.C.) [Re Evans]. The Court, citing Austin W. Scott, The Law of Trusts, 1st ed. (Boston: Little, Brown and Company, 1939) at 225 [Scott] said the following:

A conveyance, whether absolute or in trust, is ineffective if the transferor does not

surrender control of the property…. A conveyance in trust is incomplete unless the settlor has passed the title to the property to the trustee by delivery of the subject matter of the trust or of an instrument of transfer. On the other hand, if the conveyance in trust is completed by such delivery, the trust is not incomplete merely because the settlor reserves power to revoke or to alter the trust. There is a sufficient surrender of control over the property if the settlor transfers the title to it to the trustee, even though he reserves power to undo what he had done. The surrender of control is sufficient even though the settlor reserves power to reassume the control (Re Evans at 451 – 452).

[279] Alex argued that Eida did not effectively transfer the property, or relinquish control of it,

because Mr. Wilson did not register the transfer form. As such, said Alex, Eida had the unrestricted right to deal with the property. In particular, Alex relied on the following words from Re Pfrimmer Estate [1936], 2 D.L.R. 460 at para. 10 (Man C.A.) [Re Pfrimmer Estate] citing Malim v. Keighley (1794), 30 E.R.659at660:

I will lay down the rule as broad as this; wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it.

– See more at: http://www.disinherited.com/blog/requirements-valid-inter-vivos-transfer-trust#sthash.5VPAlcyW.dpuf

Wills Variation -Abandoned Infant

abandoned childMcMain v Leblanc 2013 BCSC 891 involves a fact pattern that is all too frequent in wills variation cases-the abandoned infant  who subsequently finds himself or herself disinherited from the absconding parent, often under the pretext of lack of contact, or even estrangement, but rarely the deserter parent.

In 1969 the testator separated from his wife and two-year-old son, the plaintiff when they resided in England. The testator moved to Canada in 1972 and thereafter paid no child support whatsoever and had almost no contact at all with his son.

In fact he and his wife had initially fought over custody of the plaintiff, and the mother was granted same.

No one heard from him for some years until he showed up unannounced in 1975 asking to see the plaintiff. After that brief visit he was again not hurting again for another seven years when he once again turned up unexpectedly and had two brief visits. He then phoned again in 1989. The plaintiff contacted the testator by phone from time to time but the testator expressed no interest in seeing him.

 

The testator died in 2011 and the plaintiff only heard of his father’s death when he received a copy of his father’s 2005 will, which excluded the plaintiff on the following basis:

“I have had limited contact and have not seen him in over 20 years”

The estate consisted of $330,000 cash and was left solely to the testator’s niece. In addition the niece had received an RRSP of approximately $121,000 net of taxes, outside of the estate.

The court ordered the son $180,000 out of the estate holding that the testator could not justify avoiding his moral obligations to his only child in death, by resorting to his indifference to his parental responsibilities in life. The plaintiff had a strong moral claim to a share of his father’s estate.

 

The court had the following legal reasoning and comments :

In the  wills variation case of Graham v. Chalmers, 2010 BCCA 13, Kirkpatrick J.A. referred to the leading authority interpreting the Act, Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.), and said at paras. 29 and 30:

[29] Tataryn is the leading decision in this area of the law. McLachlin J. (as she then was), speaking for the Court, clarified the principles applicable to the Wills Variation Act. Tataryn continues as the governing authority. On an application to vary a will “the court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin” (Tataryn at 814). “Adequate, just and equitable” is determined in the specific circumstances and in light of contemporary standards.

Against this consideration is balanced the principle of testamentary autonomy. However, testamentary autonomy must ultimately yield to what is “adequate, just and equitable”: Tataryn at 815-816.

[10] In Tataryn, supra, McLachlin J. clarified that what is “adequate, just and equitable” must be viewed in light of current societal norms, and wrote:

[28] … Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[11] In this wills variation case, the plaintiff was the testator’s only child. No other person was entitled to make a claim under the Act. The plaintiff did not advance legal obligations to support his claim. He relied, instead, on the moral obligations referred to in Tataryn.

[12] The defendant acknowledged that the circumstances under consideration here gave rise to a moral obligation in the testator respecting the plaintiff, but submitted that the testator’s written reasons for disinheriting the plaintiff were valid and rational, and that the plaintiff had failed to discharge the burden of establishing that those reasons were false or unwarranted. Accordingly the defendant submitted that the testator’s moral duty in respect of the plaintiff was negated: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213.

[13] The law requires only that the reasons should be valid, meaning based on fact, and rational, in the sense that there is a logical connection between them and the act of disinheritance: Kelly v. Baker, [1996] 82 B.C.A.C. 150.

[14] Therefore, as previously stated, the defendant submitted that the plaintiff’s claim should be dismissed. In the alternative, the defendant took the position that the plaintiff’s moral claim to provision from the estate, if not negated, was tenuous or weak, and the plaintiff should be entitled to a maximum of 1/3 of the net estate, or approximately $130,000.

[15] By contrast the plaintiff’s position is that the reasons for disinheritance were unwarranted and only superficially or partially true, and asked that all or substantially the all of the net estate should be awarded to him.

However, there was one aspect of his life in which the testator came up badly short, and that was in the discharge of his parental obligations to his son. Whatever the strengths of the testator’s character, and I am prepared to accept that there were many, he had this one flaw: having brought the plaintiff into the world, and having fought assertively to gain custody of him, after his departure from England, he gave him short shrift and ignored and neglected him for most of his life.

[83] Apart from a couple of short visits in England, and with the notable exception of the trip to Canada in 1983, during his lifetime the testator provided the plaintiff with precious little material or emotional support. He occasionally raised the plaintiff’s hopes of establishing a proper relationship him, and I am satisfied that this is precisely what the plaintiff wanted, but then disappointed him by reverting into himself and allowing lengthy periods to pass without any communication.

[84] No one will ever know for sure what motivated, or failed to motivate, the testator. His attitude towards his son is most peculiar, especially when it is considered that, during their brief and intermittent encounters with each other, it appears that the testator and plaintiff got on well.

[85] I have no idea why, after the successful 1983 visit, the silence between father and son should have resumed, or why the testator would not agree to have the plaintiff come and stay with him for a while in 1988. It is a mystery to me why the testator travelled to England in 1989 for his sister’s funeral without looking up the plaintiff. His failure to make the effort to meet the plaintiff in Vancouver in 1995 strikes me as most odd as well, and the excuses given, that he had slept in and that, in essence, the visit would be too brief to merit the expense of making the journey, strike me as being petty, self-centred and more than a little sad.

[86] The testator seems to have been tightly connected to his sisters and their offspring. He was married to his second wife Betta for many years. He was a caring and devoted dog owner. I conclude that he was capable of forming strong bonds with loved ones, and of commendable constancy in his relationships with others, human and canine alike. But for some reason that I simply cannot fathom he rejected and neglected his son.

[87] I conclude that the testator turned his back on the plaintiff from an early age. Such efforts as he made over the years to care for his son or provide him with material or emotional support were miniscule. Most of the effort to keep any relationship alive was made by the plaintiff. Apart from a couple of impromptu appearances on the plaintiff’s doorstep in England and the 1983 Canadian visit, the testator’s life-long indifference to his only son was almost total.

Although every case must be decided on its peculiar facts, and the facts at bar differ from those in Gray v. Nantel,supra, nevertheless I would respectfully adopt the spirit of the following observation of Donald J.A. as follows at para. 17 of the judgment:

[17] I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in

What Constitutes a Marriage-Like Relationship?

The Criteria of a Marriage-Like Relationship

Campbell v Campbell 2011 BCSC 1491 is a family law, common-law relationship of approximately 5 years that again reviews the various criteria as to what constitutes a common-law marriage.

The parties cohabited unmarried for approximately February 1998 two spring 2002. The female worked the odd job, was primarily financially dependent on her male partner, and she spent most of her time with duties around the home including assisting all the children in the blended family from time to time. Her household activities occupied much of her time. Her husband worked at his job full-time work in a considerable number of hours per week.

One of the issues was that prior to getting married, the parties entered into a marriage agreement, After reconciling after approximately 1 years separation,the parties ultimately married in August 2005. The relationship continued on in much the same basis.

The court at paragraph 39 makes a clear statement that in the eyes of the law, spouses are individuals who are either married to one another or living in a marriage-like relationship. Marriage-like is not defined in the family relations act or in estate litigation estate law for that matter, and thus the meaning has largely been developed through case law.

The Law

( 40) The starting point with respect to what constitutes a marriage-like relationship is the Court of Appeal’s decision in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 at 268,1 R.F.L. (3d) 448 [Gostlin], wherein the Court stated:

… 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 disabled 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 ‘No1, then they may be living together, but not as husband and wife.

Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

[41] The subjective intention of the parties is not determinative. As suggested in Gostlin, if one party submits that it was not their intention to commence a marriage-like relationship at that particular time, his or her statement is not conclusive if objective factors exist that suggest that a marriage-like relationship existed (see also Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 at para. 53,48 B.C.L.R. (3d) 265 (C.A.), leave to appeal to SCC ref d, [1998] S.C.C.A. No. 238).

[42] In Molodowich v. Penttinen, [1980] O.J. No. 1904,17 R.F.L. (2d) 376 (Dist. Ct), the Court delineated the type of objective factors that might point to the existence of a marriage-like relationship. Such factors include: their living and sleeping arrangements; their sexual and personal behaviour; how they divided domestic tasks; whether and how they interacted with their respective families and communities; whether they held themselves out as a “couple”; whether one spouse relied on the other for financial support; and their conduct and attitude towards children.

[43] There is no “checklist of characteristics” that must be present in order to qualify as a marriage or marriage-like relationship. As the Court held in Austin v. Goerz, 2007 BCCA 586 at para. 58,74 B.C.L.R. (4th) 39 [Austin]:

[58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124 [Yakhvchuk]:

[ 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. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Italics emphasis in original; underline emphasis added.]

[44] Each relationship is unique, and as described by Dardi J. in J.J.G. v. K.M.A., 2009 BCSC 1056 at para. 34,71 R.F.L. (6th) 349 [J.J.G.], “in undertaking the analysis of what constitutes a marriage­like relationship, the court should take a broad view in order to reflect the diversity of spousal relationships that exist in modern society.” Further, the Court noted at para. 37:

[37] In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship.

Common Law Spouse of 21 Years Awarded %70 Estate

seventy

 

The plaintiff and the deceased lived together in a common-law marriage like relationship for 21 years in a house owned by Rose. At the time of cohabitation, Rose was divorced and the deceased was separated. Rose had one child from a previous relationship.

 

At the time of the deceased death, Rose was retired and owned a house worth $1,240,000.

 

The deceased and his mother jointly owned a condominium and term deposits of some $69,000.

 

The defendants were the deceased sister and brother, nieces and nephews.

 

In generate 2007, one month prior to his death, Rose and the deceased made handwritten changes to the deceased will and had roses some type of the new will. The new will appointed rose as executor, made special bequests to the church and cancer foundation and gave the residue of the estate to Rose.

 

The new will was signed but not witnessed.

 

The new will had markings Rose said were made by him after the deceased died and not by the deceased to indicate she did not agree with parts of the will.

 

Rose asked a Notary Public to transfer the bank accounts into joint names.

 

The Notary Public attended the hospital to speak with the deceased, but did not prepare a new will as she said there was no spontaneous response from the deceased to requests to prepare a new will.

 

Rose brought court action to vary the will as he said the original will did not make adequate provision for his maintenance and support.

 

The action was allowed on the basis of the deceased had neither illegal nor moral obligation to the defendants, where she had both to Rose.

 

Rose’s net worth in relation to the deceased was not a factor. The variation of the will was adequate just and equitable to Rose and entirely appropriate in all the circumstances.

 

The court ordered that Rose receive 70% of the net value of the estate with the residue to be divided between the church and the other defendants.

 

THE LAW

The basis for bringing a claim to vary a will, is found in s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490 (the “Act”):

2. 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 provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.

[37] The plaintiff comes within the definition of “spouse” found in the Act:

“Spouse” means a person who

(a) is married to another person, or

(b) is living and cohabitating with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabitated in that relationship for a period of at least 2 years.

[38] Counsel for the parties are on common ground that the test for whether a testator has made adequate provision for the maintenance and support of a spouse is the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. In Tataryn, the Court found that two sets of societal norms must be addressed:

(1) legal obligations which the law would impose upon the testator during his or her lifetime; and

(2) moral obligations, which are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.

[39] At p. 821 of her reasons, McLachlin J. (as she then was) explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[40] The Court also recognized the importance of protecting testamentary autonomy. At pp. 823-4 McLachlin J. held, as follows:

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. 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 in so far as the statute requires.

[41] However, counsel are not on common ground about whether the recent decision in Picketts v. Hall (Estate), 2009 BCCA 329, 95 B.C.L.R. (4th) 83, has changed the law, or whether the outcome applies to the facts in the case at bar.

[42] In Picketts,the Court squarely addressed the issue of the legal and moral duty owed by a testator to a common law spouse, and whether different considerations apply to a common law spouse than to a married spouse in an application to vary a will.

[43] In that case, Mr. Hall and Ms. Picketts had lived together for 21 years as though they were a married couple. On Mr. Hall’s death, Ms. Picketts was 75 years of age. He left two adult sons, and an estate worth $18,000,000.

[44] Under his will, Mr. Hall left Ms. Picketts the condominium they had been living in, and $2,000 per month for her life. The Court awarded Ms. Picketts $5,500,000, which was an amount close to one-third of the value of the estate, the amount she would have received under the provisions of the Estate Administration Act, R.S.B.C., 1996, c. 122 (the “EAA”).

[45] Low J.A. dealt with Mr. Hall’s moral obligation to Ms. Picketts and the application of the EAA, as follows:

[54] Although McLachlin J. in Tataryn did not discuss the Estate Administration Act, R.S.B.C. 1996, c. 122, or its applicable predecessor, under the topic of legal obligations, I think that statute bears mentioning at this point. The provisions in the statute as to intestacy succession create a default succession in law if a person should die without a will. Section 85 states that, on an intestacy in which there is a surviving spouse and a surviving child or surviving children, the spouse is entitled to the first $65,000 of the estate and half of the residue if there is one child surviving, and one-third of the estate if there is more than one child surviving.

[55] In the unlikely event that Mr. Hall had died intestate, Ms. Picketts would have received one-third of the entire estate. This is because the definition of “common law spouse” in the Estate Administration Act was amended by the Definition of Spouse Amendment Act, S.B.C. 1999, c. 29, to mean, inter alia, “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between two persons of the same gender, for a period of at least 2 years immediately before the other person’s death”. This is essentially the same definition as the definition of “spouse” in the Wills Variation Act. The two definitions became law on the same date.

[56] Although the intestacy provisions of the Estate Administration Act do not directly affect the legal considerations under Tataryn, it is significant that the Legislature chose to amend both statutes at the same time. This can be seen as a dovetailing of the two statutes to reflect the social norms of the day and, to repeat the quote from Tataryn at p. 822, to “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives…”

Who Owns Your Digital Data After Death

Reprinted from the Economist July 18,2013

The Economist explains

Who owns your digital data after death ?

AFTER we die, our bodies are reduced to dust or ash, through burial or cremation. The fate of the digital corpuses we leave behind is rather more complicated. Before the advent of internet-hosted storage and services, your digital remains would have been accessible only to those with physical access to your computers, and only then if you had not applied encryption or password protection. But these days many people leave traces of their lives spread across the internet. Facebook knows who we love and hate, Google knows what we are interested in, Amazon knows what we buy, and so on. Specialist services may even store information about your genetic makeup (23andme) or archives of your files (Dropbox, CrashPlan, and many others). Who owns your data when you’re dead?

No one, not even a probate lawyer, will tell you that the process of transferring property by writing a will—or dealing with the absence of one—is a simple matter. But when it comes to financial assets, physical goods or property, thousands of years of tradition and many hundreds of years of legal precedent provide a basis on which to proceed in even the most esoteric cases. Digital assets that are stored on shared servers in the cloud, by contrast, are so new that legal systems have not yet caught up. Five American states have passed legislation to provide executors and other parties with a legal basis on which to assert authority over digital assets, and others are considering similar rules, but these laws vary widely in what they cover (the oldest of them covers only e-mail). There are no federal laws. The same is true in other countries. To complicate matters further, internet firms may be based in different countries from their users and may store data in servers in many countries, making it unclear whose laws would apply.

A paper by Maria Perrone in the journal CommLaw Conspectus explains how internet firms and digital service-providers sit in final judgment when it comes to deciding the fate of data belonging to the dead. Some firms cite an American law from 1986, the Stored Communications Act, as clearly prohibiting many forms of data handover to heirs or estates, even with verified written instructions asking for data to be released. The law provides no exemptions and involves hefty prison sentences for violators. But every company seems to have its own set of rules, procedures and terms of service. Some require a legal executor to make a request, while others honour requests from anyone who can prove a family connection or even a link to an online obituary. Facebook limits valid parties to requesting either that an account be removed or be turned into a memorial site. Twitter says bluntly that it can deactivate an account on presentation of several bits of information, but it is “unable to provide account access to anyone regardless of his or her relationship to the deceased.” Some firms delete accounts after inactivity; others refuse to allow renewals to keep the data alive; others won’t allow any changes, and leave a user’s data frozen in time, to the distress of those left behind. Several companies, such as Cirrus Legacy and LegacyLocker, offer digital safes for passwords and documents, releasing them only to authorised parties in the event of the owner’s death. But such firms state clearly that their contract is not legally binding in two regards: a judge or executor might compel them to release information to people other than those specific by the owner, and the passwords may be useless if they relate to an account that has been separately deactivated or shut down.

All this can be maddening for those dealing with grief. But there are signs of progress. In April, Google released the Inactive Account Manager, which in effect allows users of its service to set up a digital will. When enabled, it activates a dead-man’s switch, and if the account is not used for a specified period (between three and 18 months) an e-mail can be sent to a trusted contact, and there is an option to delete the account automatically. The trusted contact can then follow a procedure to gain access to the account. Other internet giants may follow suit and offer similar features. More broadly, America’s Uniform Law Commission, a non-partisan group that creates model legislation that is then adopted unchanged by many American states, has a “Fiduciary Access to Digital Assets” committee working on amendments to existing ULC laws that would give executors many of the same powers over digital assets that they have over financial and physical ones, while absolving service providers of any liability. These adjustments could be incorporated into some states’ laws as soon as 2015, though some federal fiddles may be required as well. In her paper, Ms Perrone notes that such uniformity would mean that “people would no longer have to rely on companies’ varying terms of use to determine how to manage digital assets.” When dealing with death, a little certainty can be a great comfort.

“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.