“Marriage-Like” Relationship Criteria

“Marriage-Like" Relationship Criteria

DN V MR 2019 BCSC 53 is another decision that explores the various criteria a court will examine in determining whether a couple has lived in a marriage like relationship for at least two years as is required by WESA in order to be found to be spouses under the 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.

In Dey v. Blackett, 2018 BCSC 244, citing Austin v. Goerz, 2007 BCCA 586, the court held that the “determination of whether a relationship was marriage-like requires a ‘holistic approach’, in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question”: at para. 192.

Parties can continue to “live together in a marriage-like relationship” even though they do not actually reside under the same roof: Thompson v. Floyd, 2001 BCCA 78 at para. 34.

In Roach v. Dutra, 2010 BCCA 264, the Court of Appeal upheld the trial judge’s conclusion that the parties were spouses under the Family Law Act, even though they began living in separate residences, but with a view to preserving their relationship.

A marriage-like relationship can be found in the absence of cohabitation where there is evidence that supports that a couple were is a loving and intimate relationship for many years. An example is found in Connor Estate, 2017 BCSC 978, where the court found at paras. 48–51 that even though the parties in question did not live together (they were unable to do so because of illness), they were in a “marriage-like relationship” for the purposes of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13.

The evidence was that they had a “loving and intimate relationship” and that it they supported each other emotionally, “loved each other, were faithful to each other, communicated with each other almost every day when they were not together, considered themselves to be (and presented themselves to be) “husband and wife” and were accepted by all who knew them as a couple”: at para. 50.

A determination as to whether or not parties are “spouses” or in a “marriage-like relationship” is a question of mixed fact and law: Austin v. Goerz, 2007 BCCA 586; see also Weber v. Leclerc, 2015 BCCA 492 at para. 22, leave to appeal ref’d [2016] S.C.C.A. No. 19.

There are a myriad of factors that can be taken into account some of which include the questions listed in Molodowich v. Penttinen, (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which the Court of Appeal noted in Weber at para. 25 “are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship”. That said, the Court of Appeal also emphasized that these factors should not be approached as a checklist, and that the circumstances should be addressed holistically. The approach in Molodowich is as follows:

(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?

[34]         To the foregoing must be applied the following caveat of Justice Blair in the Warwick v. Ontario (Minister of Community & Social Services) (1978), 91 D.L.R. (3d) 131:

The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case.

Sham Trusts

Sham Trusts

Borges v Santos 2017 ONCJ 651 dismissed a claim brought against a trust alleging that the trust was a sham trust.

The case involved a garnishing order brought against a trust set up by the defendant’s mother from which he lived on.

The defendant had no other source of funds or assets and owed $40,000 of child support.

The plaintiff failed in her allegation that the trust was a sham. There was no deception when the trust was established and the defendant did not secretly control the trust.

Water’s Trusts in Canada describes a sham trust as follows:

The term sham is not a precise term, and practically means that “ something that is not what it seems , a counterfeit. It means that the parties true intent is that others will be mislead by the terms appearing on the document. 

Used in a trust that the courts will declare void because the provisions in the document do not represent the settlor’s true intent as to the terms upon which the trustee is to hold the trust assets.

Though the trust sets out the persons  or purposes that are to benefit, the settlor’s true intent is to retain control of the assets because the trusts intent is to appear as that the settlor has disposed of assets and so to defeat taxes, creditors, prejudice the rights of a spouse or the children of the relationship.

Thus a trust created by a Settlor who declares himself the trustee of the property, rather than make a transfer of the assets to another as trustee, lends itself to this misrepresenting behaviour. A trustee who agrees to assists the falsity, or who is indifferent to whether, in fact, he merely implements the trust , lends himself to the misrepresenting behaviour will equally enable the assertion to be made that the fraud is a deception and thus a void document.

Wills Variation Refused: Assets Passing Outside of Estate Sufficient

Wills Variation Refused-Assets Passing Outside of Estate Sufficient

In Peterson v Welwood 2018 BCSC 1379 the court dismissed a Wills variation action brought by a son who had already received 51% of the estate through receipt of a jointly owned property that passed outside of the estate and a bequest of $20,000 bonds.

The court found the dispositions were within the range that was an adequate, just and equitable provision that would have been made by a contemporary judicious parent.

The court stated that while the plaintiff had a bona fide expectation that his father would provide for him on his death, he had only seen his father a few times in the years prior to his death, and the relationship had become very strained after 2007.

The deceased will left 50% of his estate to a charity, with the remainder going and neighbours except for the bonds.

The Court of Appeal in Chan v Lee estate 2004 BCCA 644 at paragraph 43 affirmed that judicial interference with testamentary authority should be minimized and the court should not approach the wills variation act as a means to right all the perceived wrongs of the past or to improve upon the degree of fairness of a will if the testator has met his or her obligations under the wills variation act (now s 60 WESA)

The leading case of Tataryn v Tataryn (1994)2 SCR 807 held that the court must apply an approach that accords with the contemporary view of marital and parental obligations.

The court in Tataryn recognized that the foregoing assessment necessarily involved the balancing of competing claims and held that where the size of the estate permits all moral and legal claims should be satisfied.

In this particular case, it was important for the court to recognize that jurisprudence also establishes that in determining whether the will maker has fulfilled his or her obligations, the court may consider gifts made outside the will.

If the will maker has made gifts to individuals other than the claimant or has arranged his affairs to facilitate a passing of assets to such individuals outside the framework of the will,the moral duty to a claimant maybe intensified.

Conversely and depending on the circumstances, a will maker’s moral duty may be diminished or negated entirely or he or she has made gifts to a claimant either before death or in consequence of it. Doucette v McInnes 2009 BCCA 393 at para. 84.

The date of the deceased death is the appropriate date at which to assess the value of the estate. Graham v Chalmers 2010BCCA13 at para.35.

The gross value of this estate was approximately $345,000, but after deducting estate expenses the actual value of the estate at the date of death was $288,000.

The plaintiff and the deceased were joint owners of a property, which devolved to the plaintiff upon the death of the deceased, and the value of the property as of 2017 was $450,000.

The court found as a fact that the plaintiff had contributed approximately $20,000 towards the purchase price of the property, which was approximately one fifth of the purchase price.

The plaintiff had worked on the farm property as a child, and claimed unjust enrichment in his court action, but the court found that as a general rule, the fact that unpaid work performed by a child or teenager in the context of routine family chores constituted a juristic reason to deny a claim for unjust enrichment.

The court held that the value of the estate as of the date of death was approximately $345,000, and the value of the deceased property that passed to the plaintiff by right of survivorship was $305,000, plus the bequest of $20,000 bonds.

Most importantly for this decision, the court held that the testator’s moral duty may be diminished or negated entirely where the claimant has received gifts or assets on the testator’s death outside the framework of the will. JR v JDM 2016 BCSC 2265 at para.88.

While the court found that the plaintiff believed that his father had treated him unfairly , the disappointment and mistrust that the deceased had for his son, whether justified or not, precipitated the change in his estate planning , but even with the change , the plaintiff still received %51 of the deceased’s assets as of the date of death.

The court therefor concluded that the disposition of the deceased’s assets was one of a range of possible dispositions on his death. The held that the option chosen by the deceased fell outside the range of options that might be considered appropriate by a contemporary judicious parent and thus should be respected.

The deceased’s arrangement of his affairs fell within the range of testamentary freedom entitled to deference – Saugestad v Saugestad 2008 BCCA 38 at para.39.

Hidden Assets: Abuse of Process

Hidden Assets- Abuse of Process - Disinherited

The Court of Appeal in Estate v Esteghmat-Ardakani 2018 BCCA 290 upheld the dismissal of a claim on the basis of abuse of process as the appellant hid assets and in one court action disavowed beneficial owner of the assets and in another court action claimed beneficial ownership of the same assets.

In a divorce action the appellant asserted that she held millions of dollars of property in trust for her mother.

After settlement of the divorce action, the appellant then commenced a court action against her sibling and another, asserting she was the beneficial owner of property that she had previously asserted in another court action that she held in trust for her mother.

The court found that in the context of the allegation of inconsistent pleadings, the financial statement filed in the divorce action was tantamount to a pleading, and the appellants deliberate inconsistent pleadings were an abuse of process, causing dismissal of her claim.

In the trial judge’s reasons for judgment 2017 BCSC 878, the court stated that in the divorce action the appellant:

1) Did not disclose key facts as required by law and oath;
2) deceived the opposing counsel and the court;
3) perpetrated a fraud designed to cheat, using the court and its processes;
4) used false documents and false discovery evidence to mislead her own counsel and the opposing counsel;
5) attended the divorce hearing and remain silent while knowing of her sworn false filed form financial statement, and the false and concocted story she gave during her examination for discovery.

The trial judge found that the appellants action was an abuse of process because she was attempting to pursue inconsistent rights by claiming in the divorce action that she did not have a beneficial interest in certain property and then, in the action against her mother and siblings, claiming she did have that interest.

The court stated at paragraph 33:

“A litigant cannot use the court’s process to state one set of rights in a proceeding, and then a subsequent proceeding assert rights inconsistent with the rates for stated. Otherwise, uncertainty would result in many paths of mischief would be introduced into our law for the avaricious, the malicious, and the vexatious. The litigant must elect at the outset, which set of rights the litigant wishes the court to recognize.

The court further stated that her actions to continue would bring the administration of justice into disrepute, citing Regina v . Grant 2009 SCC 32 at paragraph 68 for the principle that the reputation of the justice system, including that of the courts, must be understood in the long sense of maintaining the integrity of and public confidence in the justice system.

The trial judge referred to an off cited passage from Cunha v Cunha (1994) 98 BC LR93 at paragraph 9 that nondisclosure of assets is the cancer matrimonial property litigation, and the judge of kind that not permitting the appellants claim to continue would impress upon family law litigants the need to be true thoughts with respect to disclosure of their assets.

I would applying that the same principle would apply in estate litigation.

Termination of a Marriage-Like Relationship

Termination of a Marriage-Like Relationship

The BC Court of Appeal in Robeldano v Queano 2019 BCCA 150 reviewed the law as to when a person in a marriage like relationship ceases to be when either or both of them “terminate the marriage like relationship” under Section 2(2) (b) WESA.

Separation may lead a judge to infer that one or both of them has terminated the marriage like relationship, but separation per se, is not the test for termination of a marriage like relationship.

The court pointed out that there is an anomaly in that under WESA there is a different test for when person cease to be spouses when married as opposed to ling in a marriage like relationship.

The court declared that section 2(2)(b) of WESA is a rather imprecise and flexible legal standard.

The question of whether a person has terminated the relationship requires a judge to consider the expressed an implicit intentions of each spouse, as well as the objective evidence concerning the substance of the relationship.

The determination is a judgment call for the trial judge- the application of a broad legal standard to the factual circumstances of an individual case.

It is a question of mixed law and fact.

Where trial judges correctly identified the standard, and is not made any palpable and overriding error in applying it, deference to the trial judge’s decision is required. Housen v Nikolaisen 2002 SCC 33.

The test for a married couple on the other hand, under section 2(2)(a) is that if the parties live separate and apart for at least two years with one or both of them having the intention, formed before or during that time , to live separate and apart permanently, or an event occurs that causes an interesting family assets to arise, then their relationship as spouses is terminated.

The Court of Appeal in Robledano has not particularly offered guidance as to when a marriage like relationship is terminated, other than to state it is a rather imprecise and flexible legal standard, involving mixed law and fact.

Because the trial judge found as a fact that the spousal relationship never ceased to exist, the court found it unnecessary to consider whether the statute (WESA)  considers revival of a spousal status if former spouses reconcile and resume living in a marriage like relationship.

Wills Variation: Financial Disclosure of a Spouse

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Jones v Jones 1984 Carswell BC  is a BC Court of Appeal decision that held that the financial disclosure of a wills variation claimant’s spouse  is relevant and compellable as evidence in order for the court to consider what is adequate, just and equitable in the event that the court decides the testator has not made adequate provision for the proper maintenance of the applicants.

It is almost invariably the case, that such evidence is irrelevant to that first determination. But it is highly relevant, in my opinion, to the second determination that must be made under the section, that is, what provision the court thinks is adequate, just and equitable in the event that it decides that the testator has not made adequate provision for the proper maintenance of the applicants. Thus, I think the evidence was properly admissible and that first ground of appeal must fail.

The Jones BCCA decision is cited in Mordo v. Nitting, 2006 BCSC 765 (CanLII) and Andersson v. Khan Estate, 1999 CanLII 5936 (BC SC).

Was Joint Tenancy Severed?

Was Joint Tenancy Severed?

A joint tenant may sever a joint tenancy with or without the consent or knowledge of the other joint tenant. Many joint owners are shocked to learn that this has in fact happened without their knowledge. They may be even more surprised to learn that their conduct also lead to a severance of their joint tenancy interest.

When a joint tenancy is severed the joint tenancy is converted into a tenancy in common, and the right of survivorship is extinguished. As a result of the severance, each affected co-owner(s) ceases to become a joint tenant, and instead as a tenant in common, owns a distinct share rather than an undivided interest in the whole.

It is long-established law that severance is typically affected in one of three ways:

1) By one person acting unilaterally upon his or her own shares, so as to destroy the four unities ( ie by transferring his or her interest to his or herself) ;

2) By mutual agreement, such as a written contract;

3) By any “ course of dealing” sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common- for example, conduct which demonstrates both tenants mutually dealt with their interests as several

The onus of proof rests on the party asserting the severance. McKee v . National Trust Co.(1975) 7 O.R (2d) 614 (CA).

The BC Court of Appeal in Mayer v Mayer Estate 2018 BCSC 2225 adopted the reasoning of the Ontario Court of Appeal in Hansen estate v Hansen 2012 ONCA 112 as to what constituted a course of dealing sufficient to establish that the joint tenancy and property was severed, with the result that the co-owners interest in the property are held by way of tenancy in common.

The Ontario court stated:

131. A proper application of the course of dealing, test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interest in the property as constituting a tenancy in common. It is not essential that the party requesting the severance establish that the co-owners conduct falls into a formulation found to have had the effect of severing a joint tenancy. In other cases. The court’s inquiry cannot be limited to matching fact patterns to those in prior cases.

Rather, the court must look in the corners entire course of conduct – in other words, the totality of the evidence – in order to determine if they intended that their interests are mutually treat it as constituting a tenancy in common.

This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts.

The court went on to state that the interests of all were mutually treated requires that the co-owners knew of the other’s position, and that they all treated their respective interests in the property is no longer being jointly held. Such knowledge can be inferred from communications her conduct.

The underlying rationale for a course of dealing, severing a joint tenancy is that it ensures that a writer survivorship does not operate unfairly in favor of one owner, where the co-owners have showing, through their conduct, common intention to no longer treat their respective shares in the property is an indivisible, unified whole.

For example, in the context of negotiations between spouses were in the midst of a marriage breakdown, even failed to uncompleted negotiations can lead to a severance because the negotiation of shares in separate interests represents an attitude and that shows that the notional unity of ownership under a joint tenancy has been abandoned.

After a joint tenant dies, severance is no longer possible, because death extinguishes the joint interest. For this reason a testamentary disposition ( a will) cannot sever a joint tenancy. Bergen v Bergen 2013 BCCA 492 at para. 40.

Joint Tenancy: Severance Through Conduct

Joint Tenancy: Severance Through Conduct

A joint tenant may sever a joint tenancy with or without the consent or knowledge of the other joint tenant. Many joint owners are shocked to learn that this has in fact happened without their knowledge. They may be even more surprised to learn that their conduct also lead to a severance of their joint tenancy interest.

When a joint tenancy is severed the joint tenancy is converted into a tenancy in common, and the right of survivorship is extinguished. As a result of the severance, each affected co-owner(s) ceases to become a joint tenant, and instead as a tenant in common, owns a distinct share rather than an undivided interest in the whole.

It is long-established law that severance is typically affected in one of three ways:

1) By one person acting unilaterally upon his or her own shares, so as to destroy the four unities ( ie by transferring his or her interest to his or herself) ;

2) By mutual agreement, such as a written contract;

3) By any “ course of dealing” sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common- for example, conduct which demonstrates both tenants mutually dealt with their interests as several

The onus of proof rests on the party asserting the severance. McKee v . National Trust Co.(1975) 7 O.R (2d) 614 (CA).

The BC Court of Appeal in Mayer v Mayer Estate 2018 BCSC 2225 adopted the reasoning of the Ontario Court of Appeal in Hansen estate v Hansen 2012 ONCA 112 as to what constituted a course of dealing sufficient to establish that the joint tenancy and property was severed, with the result that the co-owners interest in the property are held by way of tenancy in common.

The Ontario court stated:

131. A proper application of the course of dealing, test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interest in the property as constituting a tenancy in common. It is not essential that the party requesting the severance establish that the co-owners conduct falls into a formulation found to have had the effect of severing a joint tenancy. In other cases. The court’s inquiry cannot be limited to matching fact patterns to those in prior cases.
Rather, the court must look in the corners entire course of conduct – in other words, the totality of the evidence – in order to determine if they intended that their interests are mutually treat it as constituting a tenancy in common. This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts.

The court went on to state that the interests of all were mutually treated requires that the co-owners knew of the other’s position, and that they all treated their respective interests in the property is no longer being jointly held. Such knowledge can be inferred from communications her conduct.

The underlying rationale for a course of dealing, severing a joint tenancy is that it ensures that a writer survivorship does not operate unfairly in favor of one owner, where the co-owners have showing, through their conduct, common intention to no longer treat their respective shares in the property is an indivisible, unified whole.

For example, in the context of negotiations between spouses were in the midst of a marriage breakdown, even failed to uncompleted negotiations can lead to a severance because the negotiation of shares in separate interests represents an attitude and that shows that the notional unity of ownership under a joint tenancy has been abandoned.

After a joint tenant dies, severance is no longer possible, because death extinguishes the joint interest. For this reason a testamentary disposition ( a will) cannot sever a joint tenancy. Bergen v Bergen 2013 BCCA 492 at para. 40

Marriage-Like Relationships: Are You a Spouse?

Marriage-Like Relationships: Are You Considered Their Spouse?

Robledano v Queano 2019 BCCA 150 clarified the law with respect to the definition of spouse after two years living together in a marriage like relationship by stating that there was no necessity for the two years living together need be immediately preceding the deceased’s death.

The appeal court rejected the argument that an unmarried person can only be a spouse of a deceased person if they were living together at the time of death, and for at least two years immediately preceding.

 

The court referred to the definition of spouse under WESA:

2(1) unless subsection 2 applies, to persons or espouses of each other for the purposes of this act if they were both alive immediately before 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 two years.

(2) to person B been spouses of each other for the purposes of this act if:

A) In the case of a marriage, an event occurs that causes an interest in family property, as defined in part five of the family law act to arise, or

B) in the case of a marriage like relationship, one or both persons terminate the relationship.

To amplify the court’s reasoning as to the meaning of paragraph 2(1) (B) of WESA, the court examined the history of the British Columbia Law Institute, commenced in 2003, known as the Succession Law Reform Project. That project culminated in June 2006, entitled Wills, Estates and Succession: a Modern Legal Framework which was the draft of WESA.

 

The draft provision for which subsection two derived was in the following terms:

1.(2) for the purposes of this act, to persons or espouses of each other at a relevant time if, immediately before the relevant time, they

a) were married to each other, or have lived and cohabited with each other at anytime for a period of at least two years in a marriage like relationship.

The court seized on the word anytime and stated that there was no reason to believe that any change in the substance of this provision was intended when the draft attached to the institutes report was transformed into a bill.

The court also interpreted the words “had lived together” to be in the past perfect tense rather than the continuous tense  “were living together”. The statue was professionally drafted and the use of the different tenses should be presumed to be deliberate.

Spouse: Two Year Marriage-Like Relationship

Spouse: Two Year Marriage-Like Relationship

Robledano v Queano 2019 BCCA 150 clarified the law with respect to the definition of spouse after two years living together in a marriage like relationship by stating that there was no necessity for the two years living together need be immediately preceding the deceased’s death.

The appeal court rejected the argument that an unmarried person can only be a spouse of a deceased person if they were living together at the time of death, and for at least two years immediately preceding.

The court referred to the definition of spouse under WESA:

2(1) unless subsection 2 applies, to persons or espouses of each other for the purposes of this act if they were both alive immediately before 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 two years.

(2) to person B been spouses of each other for the purposes of this act if:

A) In the case of a marriage, an event occurs that causes an interest in family property, as defined in part five of the family law act to arise, or

B) in the case of a marriage like relationship, one or both persons terminate the relationship.

To amplify the court’s reasoning as to the meaning of paragraph 2(1) (B) of WESA, the court examined the history of the British Columbia Law Institute, commenced in 2003, known as the Succession Law Reform Project. That project culminated in June 2006, entitled Wills, Estates and Succession: a Modern Legal Framework which was the draft of WESA.

The draft provision for which subsection two derived was in the following terms:

1.(2) for the purposes of this act, to persons or espouses of each other at a relevant time if, immediately before the relevant time, they

a) were married to each other, or have lived and cohabited with each other at anytime for a period of at least two years in a marriage like relationship.

The court seized on the word anytime and stated that there was no reason to believe that any change in the substance of this provision was intended when the draft attached to the institutes report was transformed into a bill.

The court also interpreted the words “had lived together” to be in the past perfect tense rather than the continuous tense  “were living together”. The statue was professionally drafted and the use of the different tenses should be presumed to be deliberate.