Vancouver Estate Lawyer – Parties Not in a Marriage Like Relationship For Two Years

Trevor Todd and Jackson Todd have over a combined sixty years experience in handling estate disputes including whether or not parties were in a marriage like relationship for two years.

In Chan v Tran 2025 BCSC 1308 the Court ruled that they were not in a marriage like relationship for over two years and dismissed the plaintiff’s claim re same.

FACTS

The claimant, Ms. Chan, says she and the respondent, Mr. Tran, had a whirlwind romance. She contends that their relationship had the qualities of a “marriage-like” relationship from its commencement on July 7, 2013, and remained that way until the date of their separation on November 15, 2019. Pursuant to the FLA, Ms. Chan seeks equal division of family property and debt including several real properties and business interests held in the name of the respondent. She also seeks spousal support.

[3]            Ms. Chan also seeks an exclusion under the FLA with respect to gifts given to her by the respondent including $61,000 she says he gifted her to purchase a townhouse on MacPherson Avenue in Burnaby (the “MacPherson Property”) as well as the engagement ring he gave her in February 2019.

[4]            The respondent, Mr. Tran, admits that his relationship with Ms. Chan began in July 2013 but says that they did not begin to live together as spouses until July 2019, a state that lasted for only five months before their separation on November 15, 2019. Mr. Tran opposes any division of property and the claim for spousal support on the basis that the parties were never spouses for the purposes of the FLA. If the court finds that there was a marriage-like relationship, Mr. Tran says that all of properties at issue, except the MacPherson Property, are beneficially owned by his parents and are, accordingly, excluded property not subject to division under the FLA.

[5]            The respondents by counterclaim are members of Mr. Tran’s family, namely his father, Truong Tien Tran; mother, Nu Thi Pham; brother, David Anh Tran; sister, Nga Thi Tran; and brother-in-law, The Anh Nguyen. To avoid any confusion, I will refer to the respondent by his first and last name. I intend no disrespect in doing so. If I conclude that the parties were spouses as defined by the FLA, the respondents by counterclaim seek an order that Tien Tran holds a portion of his interest in real properties in his name in trust for them, and Tien Tran seeks an order that these properties be excluded from the division of family assets.

[6]            The parties have no children together.

[7]            Regardless of whether the court concludes that the parties are spouses, Mr. Tran claims that Ms. Chan has been unjustly enriched in respect of two assets, the MacPherson Property, and a diamond engagement ring. He seeks a declaration that he holds a 50% interest in the MacPherson Property and an order for return of the ring.

[8]            There is no dispute that the parties were in a romantic, sexual, and exclusive relationship and that they became engaged in February 2019. There is also no dispute that the relationship ended in November 2019. Each party gave diametrically opposed evidence about the nature of the relationship leading up to the engagement and the periods of time in which they resided in the same residence.

[9]            The key issue before the court is whether the parties’ relationship was marriage-like. Given the stark difference between the evidence of the parties in this regard, my assessment of credibility plays a key role in resolving this question.

The court found the evidence of Mr. Tran to be more credible than the plaintiff.

THE LAW

The principles to be applied to a determination of whether there is a marriage-like relationship between parties are well-established. In articulating these principles, I can do no better than to re-produce the recent comprehensive summary of these principles by Justice Brongers in Bellerose v. Reda, 2023 BCSC 748:

[48]      The concept of a “marriage-like relationship” has been the subject of considerable jurisprudential consideration. Many of these authorities were brought to my attention by the parties. I found the most helpful one to be the relatively recent decision of Justice E. McDonald in Armstrong v. Scholz, 2022 BCSC 863. Paragraphs 29 to 35 of her reasons contain a thorough review of several of the leading cases that have discussed the principles and approach to be applied when deciding whether two persons have been in a marriage-like relationship. These principles can be summarized as follows:

  1. a)The burden is on the claimant to prove that they meet the definition of “spouse”. The standard is on a balance of probabilities (Voth v. Martin, 2019 BCSC 834 at para. 8, citing H. v. McDougall, 2008 SCC 53 at para. 49).
  2. b)Section 3 of the Act imposes both a two-year continuous “cohabitation requirement”, and a marriage-like “relationship requirement”. The cohabitation requirement is approached flexibly and may be satisfied even if the parties may have lived for extended periods at different locations (Hu v. Lee, 2022 BCSC 56 at paras. 41–42; Thompson v. Floyd, 2001 BCCA 78 at paras. 22–36).
  3. c)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 are treated as being determinative of the question (Austin v. Goerz, 2007 BCCA 586 at para. 62).
  4. d)While a “checklist” approach should not be employed, it can be helpful to consider the presence or absence of commonly accepted indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship (Weber v. Leclerc, 2015 BCCA 492 at para. 25).
  5. e)Such indicators of a marriage-like relationship may include: (1) shared shelter; (2) sexual and personal behaviour; (3) services; (4) social activities; (5) economic support and children; and (6) societal perception of the couple ( v. H., 1999 CanLII 686 (S.C.C), [1999] 2 S.C.R. 3 at para. 59; citing Molodowich v. Penttinen (1980), 1980 CanLII 1537 (O.N.S.C.) at para. 16 – these are sometimes referred to as the “Molodowich factors”).
  6. f)   Evidence of the subjective intentions of the parties is important to the determination of whether the relationship was marriage-like. However, this evidence must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship (Dey v. Blackett, 2018 BCSC 244 at para. 195).
  7. g)A person is either a “spouse” or is not. There is no middle ground. People may live together interdependently and yet fail to establish that they developed the kind of psychological and emotional union associated with marriage (F.M. v. G.L.M., 2018 BCSC 815 at para. 10).
  8. h)A marriage-like relationship is akin to a marriage without the formality of a marriage. However, it must be borne in mind that people treat their marriages differently and have different conceptions of what marriage entails (Mother 1 v. Solus Trust Company, 2019 BCSC 200 at para. 143).

[49]      Also worth mentioning are two recent “marriage-like relationship” decisions issued last year by our Court of Appeal, albeit in the context of estate litigation: Coad v. Lariviere, 2022 BCCA 222 at para. 127; and Jones v. Davidson, 2022 BCCA 31 at paras. 21–24. They effectively confirm that there is no specific definition of whether marriage-like relationships exist. In particular, such relationships are not simply defined by financial dependence, sexual relationships, or the mingling of property and finances. In sum, their existence ought not to be determined through a formulaic “checklist” approach, but rather through a contextual and holistic examination of all of the relevant aspects of the parties’ relationship.

Vancouver Estate Lawyer – Interpreting an Ambiguous Trust or Will

Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes, including the interpretation of trust documents.

In Re RM Platererr Education trust 2025 BCSC 1204  grandmother established a trust for the education of her grandchildren that was ambigouos and required the assistance of the court with directions on it’s interpretation.

THE LAW

The Court has the jurisdiction to assist in this matter pursuant to section 86 of the Trustee Act, R.S.B.C. 1996 c. 464, and Rule 2-1(c) and (d) of the Supreme Court Civil Rules, BC Reg 168/2009, Part 2: British Columbia v. Friends of Beacon Hill Park, 2023 BCCA 83; Toigo Estate (Re), 2018 BCSC 936.

[28]         In The Bank of Nova Scotia Trust Company (Trustee) v. Quinn, 2019 BCSC 439, Justice Voith (as he then was) set out the applicable analysis with regard to interpreting a trust document:

[21]         The Court, in Re Ali Estate, explained the role of a court of construction:

23. … the court is concerned with ascertaining the meaning of the testamentary documents that have been approved by the court in the exercise of its probate jurisdiction. It is axiomatic that the court must interpret or construe a will in the form in which it has been admitted to probate.

[22]         Additionally the Court, in Re Ali Estate, said:

24. … the scope of admissible evidence is generally more constrained in a construction hearing. In that instance, a court may only consider the words of the will and if, applying the subjective approach, the evidence of the surrounding circumstances known to the testator at the time the will was made. Except in very restricted circumstances (such as equivocation), the court is not permitted to review direct evidence of the testator’s intentions on a construction application…

[23]         Thus, sitting as a court of construction, a court’s primary task in interpreting a trust is to determine the actual intention of the settlor on the basis of the trust instrument as a whole. In Re Tyhurst Estate, [1932] S.C.R. 713, at 716, the Court said:

In construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole will taken together. Every word is to be given its natural and ordinary meaning and, if technical words are used, they are to be construed in their technical sense, unless from a consideration of the whole will it is evident that the testator intended otherwise.

See also James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed., (Toronto: LexisNexis, 2000) (loose-leaf updated May 2016) at §10.1 and 11.1.

[24]         Rules of interpretation and construction are applied only if the intention of the testator cannot be determined on the plain meaning of the words of the trust: National Trust Co. Ltd. v. Fleury, [1965] S.C.R. 817 at 829; Feeney’s Canadian Law of Wills at §10.19.

[25]         Uncertainty with respect to the settlor’s intent may result from ambiguity or mistake. An ambiguity arises when the meaning of a particular word or phrase is unclear. A mistake usually arises when there has been a mistaken inclusion of unintended words, a failure to include intended words, or a mistaken use of one word or expression in place of the one intended: BC Probate and Estate Administration Practice Manual (Vancouver: Continuing Legal Education Society of British Columbia, updated April 2018) at §9.36.

[26]         In such circumstances, a court of construction can add, strike and amend words as necessary in order to give effect to a testator’s intentions where that intention is plain and clear. The court will also interpret any gaps in a will that were left by the court of probate: Re Moiny Estate, 2001 BCCA 100 at para. 19; Milwarde-Yates v. Sipila, 2009 BCSC 277 at para. 48.

[27]         In Thiemer Estate v. Schlappner, 2012 BCSC 629 at paras. 45-47, Madam Justice Dardi distilled these various principles and said:

In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence… It is a cardinal principle of interpretation that the testator’s intention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy…

Another fundamental tenet affirmed by an established line of authorities is that the court is to ascertain the expressed intention of the testator – the meaning of the written words used in the particular case – as opposed to what the testator may have meant to do when he or she made the will.

Earlier lines of authority endorsed an objective approach to will interpretation. However, modern jurisprudence recognizes that a strict literal approach can defeat the intention of the testator, thereby leading to unjust results… The liberal interpretive approach finds its roots in the seminal decision of the House of Lords in Perrin.

[28]         Justice Dardi went on, at para. 48 of Thiemer Estate, to explain that British Columbia courts favour a subjective approach when interpreting testamentary documents:

In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.

[29]         It is clear that the “armchair rule” applies to inter vivos trusts: see Wong Joint Partner Trust (Trustee of) v. Wong, 2010 BCSC 1331 at para. 7; Stewart v. Stewart, 2018 BCSC 556 at paras. 50-56.

[29]         Similarly, in Killam v. Killam, 2018 BCCA 64 [Killam BCCA] the Court of Appeal affirmed the analytical approach adopted by Justice Blok on the interpretation of wills or other instruments. In his chambers decision, Killam v. Killam, 2017 BCSC 175 [Killam BCSC], Blok J. distinguished between the “four corners” approach and the “armchair” approach. In Killam BCCA, the Court of Appeal discussed this distinction as follows:

[50]       In commencing the construction exercise, the judge noted that the parties referred to two approaches to the interpretation of wills, the “four corners” approach and the “armchair” approach respectively. He described the difference between the two approaches in the following manner:

[44]      … The “four corners” approach to the interpretation of wills (or other instruments) means that the intention of the testator is to be taken from within the “four corners” of the document itself, at least in the first instance, and surrounding circumstances are not to be considered unless the intention of the testator cannot be ascertained from the language of the will alone. The “armchair” approach requires the court, at the outset, to place itself in the position of the testator at the time he or she wrote the will (that is, to sit in his or her “armchair”), and to consider the (then) surrounding circumstances and context in order to ascertain the subjective intentions of the testator.

[51]       As I have said, the judge determined that, on reading the relevant authorities, he was unable to conclude which approach to employ. In outlining his approach to constructing the will the judge said:

[60]      … No matter which approach is favoured, the starting point for any analysis is the language of the will and, in this case, the first codicil as well. I therefore begin with an analysis of the language used in the will and I will then look to the surrounding circumstances existing at the time the testator made the will.

[52]       In my view, there is no error in the approach outlined by the judge. The ultimate question in constructing a testamentary document is to determine the testator’s intention, and, as the judge said, the appropriate “starting point” is the language of the will.

[30]         In Killam BCSC, Blok J. also identified that the case authorities in British Columbia have articulated two different approaches with respect to the “armchair approach” that, in his view, were “not consistent”: at para. 47. Justice Blok described these two approaches as the “armchair approach” and the “expansive armchair approach”. He explained:

[47]      …Some indicate that surrounding circumstances are not to be considered unless the testator’s intentions cannot be discerned from the will itself. Others indicate that surrounding circumstances are to be considered at the outset in articulating the proper approach to be used.

[31]         Justice Blok observed that the British Columbia Court of Appeal had previously “endorsed both approaches in different cases” which had “[left] the issue in an unsatisfactory state of uncertainty”: Killam BCSC at para. 56. Unfortunately, on the appeal from Blok J.’s decision, the Court of Appeal declined to endorse one approach or the other, leaving the law in a continued state of uncertainty. Accordingly, Blok J. decided to employ a combination of the two approaches:

[60]      In light of this legal uncertainty I conclude that some combination of the two approaches is called for here. No matter which approach is favoured, the starting point for any analysis is the language of the will and, in this case, the first codicil as well. I therefore begin with an analysis of the language used in the will and I will then look to the surrounding circumstances existing at the time the testator made the will.

[32]         For the purposes of these reasons, I intend to proceed in a similar manner. I will apply the “four corners” approach as a starting point and then, if the intention of the settlor cannot be ascertained from the language of the Trust Deed alone, proceed to apply the “armchair approach”. I do not intend to apply the “expansive armchair approach” identified in Killam BCSC although, for reasons that will become clear below, I would have reached the same conclusion regardless of which approach is applied.

Vancouver Estate Lawyer – Handwritten Changes to Will Admitted to Probate

Trevor Todd and Jackson Todd have over 60 years combined experience in handling estate disputes.

Re Koehler Estate 2025m BCSC 1110 exercised S. 58 WESA to cure an otherwise “normal” properly prepared will but for hand  written changes made by the deceased with the assistance of a friend on the same document, wherein the executor was changed and the residue was left to the friend who assisted with the hand notations on the will.

The prime asset of the estate was a house worth $700,000.

The LAW

Court order curing deficiencies

58(1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

[7]            I have been referred to three judgments in respect of the proper application of s. 58 of the WESA in such circumstances: Hadley Estate (Re), 2017 BCCA 311, at paras. 35-40; Gibb Estate (Re), 2021 BCSC 2461, at paras. 40-48; and Jakonen Estate (Re), 2022 BCSC 2261, at para. 44.

[8]            It is clear from these authorities that the focus of the court on a s. 58 application is to determine whether the testamentary document is authentic and represents a fixed and final testamentary intention. The factors listed in Jakonen assist the court in making that determination. Those factors include:

a)     Was the document or record made by the Deceased or by a third party? A document made by the Deceased is more likely to be given effect than a document made by a third party, including a lawyer’s draft: George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.).

b)     Where was the document or record found? If the Deceased left the document or record in a prominent place where it was likely to be found, or with other testamentary documents, the document or record is more likely to be given effect: Skopyk Estate, 2017 BCSC 2335 at para. 22

c)     Is the document or record signed, or is there any other compliance of the formal requirements for a valid will? The greater the degree of compliance with the formal requirements, particularly if the document is signed, the greater the likelihood that the document or record will be given effect: Estate of Young, 2015 BCSC 182 at para. 39

d)     Is there a title on the document or record? If a document or record is given the title “will” or “codicil” or a similar notation, it is more likely to be given effect: Smith Estate (Re), 2016 BCSC 350 at para. 23.

e)     Is the language of the document or record dispositive, and does it have an air of finality? If so, it is more likely to be given effect: Smith Estate at para. 23.

f)      Does the document or record provide for a rational distribution? If so, it is more likely to be given effect: Skopyk Estate at para. 27

g)     Is the document or record consistent with other evidence of the Deceased’s intentions? If so, it is more likely to be given effect: Estate of Young at para. 3

[9]            Factors a), b), and c) from Jakonen include consideration of who made the notations on the document and other circumstances surrounding its preparation. In this case, Ms. Figgess’ evidence is that the notations were made by her, and not by the deceased. With respect to where the will was found, Ms. Figgess said that the deceased asked her to keep his will at her residence in a file stored in a box marked “TPK,” which she did. With respect to whether the document is signed, the Original Will is, but there are no signatures in respect of the handwritten changes.

[10]         Item e) from Jakonen directs the court to consider whether the language is dispositive. It is my view, having looked at the way the changes are expressed, the Original Will was clear as to what gifts were to go to whom, and the handwritten amendments are sufficiently clear as well. They simply remove one beneficiary and replace that person. So in my view, there is no issue with clarity.

[11]         This application, in my view, stands to be determined on items f) and g) from Jakonen: whether there is a rational distribution, and whether it is consistent with other evidence as to the deceased’s intention, looking at the available evidence as a whole. I appreciate that the deponent on whom I must rely in the circumstances is the person who benefits directly from the handwritten alterations to the will. That said, Ms. Figgess was also someone the deceased relied upon to assist him with such matters and someone that he apparently at all material times intended to make a gift to from his estate.

[12]         The evidence indicates that at his death, the deceased was not in a marriage-like relationship and had no natural or adopted children. The people mentioned in his will were all friends with whom he wishes to share his estate. Ms. Figgess’s evidence with respect to the circumstances surrounding Mr. Mercier’s removal from the will is set out in her affidavit #2 as follows (wherein “Thomas” is the deceased, and “Doug” is Mr. Mercier):

 

BC Estate Lawyer – Destroying Evidence (Spoilation)

Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes.

Occasionally a party destroys, conceals or alters estate evidence. This is known as spoilation.

Spoliation occurs when a party intentionally destroys, mutilates, alters, or conceals evidence relevant to ongoing or contemplated litigation in circumstances where it can be reasonably inferred that the evidence was destroyed to affect the litigation: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras. 18, 29; Holland v. Marshall, 2008 BCCA 468 at para. 59; Dyk v. Protec Automotive Repairs, 151 D.L.R. (4th) 374 at para. 3, 1997 CanLII 2114 (B.C.S.C.).

To establish spoliation, the party alleging it must show that:

1. the evidence was destroyed, mutilated, altered, or concealed;
2. the evidence was relevant;
3. legal proceedings were pending or contemplated; and
4. the destruction, mutilation, alteration, or concealment was an intentional act of the party or the party’s agent indicative of fraud or intent to supress the truth.

(Dyck at para. 20; Holland at para. 59.)

Spoliation requires intentional conduct: Chow-Hidasi v. Hidasi, 2013 BCCA 73 at para. 29; McDougall at para. 29. An intentional act in this context means an act “with the knowledge that the evidence would be required for litigation purposes”: Chow-Hidasi at para. 29.

If all four elements of spoliation are established, then the affected party is entitled to a procedural remedy: Endean v. Canadian Red Cross Society, 157 D.L.R. (4th) 465 at para. 9, 1998 CanLII 6489 (B.C.C.A.), leave to appeal to SCC allowed [1998] S.C.C.A. No. 260, but subsequently abandoned. The usual remedy is a rebuttable presumption that the destroyed evidence would have been unfavourable to the party who destroyed it: St. Louis v. The Queen, 25 S.C.R. 649 at 652–653, 1896 CanLII 65; McDougall at para. 29; Matossian Estate v. Clark Estate, 2024 BCSC 247 at para. 43; Dawes v. Jajcaj et al., 1999 BCCA 237 at para. 69. This presumption is “no more than an adverse inference”: McDougall at para. 24.

The alleged spoliator can rebut the presumption by adducing evidence that they did not intend to affect the litigation by destroying the evidence or by other evidence which proves their case or repels the case against them: McDougall at paras. 19, 29.