Trevor Todd nd Jackson Todd have over sixty combined years in resolving estate disputes including marriage like relationships

 

Sharon Clark died without a will and had no children or surviving parents. Her only sibling, the appellant, challenges the trial judge’s finding that she and her former partner were spouses under the Wills, Estates and Successions Act, S.B.C. 2009, c. 13.

He argues the trial judge erred in failing to consider Ms. Clark’s subjective intentions and in finding there was a marriage-like relationship. The parties never cohabited as a couple.

Held: Appeal dismissed. Determining whether a relationship is marriage-like involves a fact-driven contextual analysis of all the evidence relevant to the various indicia of a spousal relationship. The trial judge did not err in considering the parties’ intentions or in her approach to assessing the indicia of a marriage-like relationship.

MS Clark died in 2020 at age 79. She had been in a relationship with Mr. Matossian for 38 years He died two years after Ms Clark. A court action was commenced that for an order that Clark and Mastossian were spouses under S 2(1)(b) of WESA. The trial judge agreed they were and the appeal court upheld that decision.

 

The parties never cohabited as man and wife but they spent a lot of time together and many witnesses testified as to same and there was a significant body of evidence such as photographs of them and travel documents together.

The two had separate finances and did not provide for each other in a will or through beneficiary  designations.

 

They discussed moving together early in their relationship but there wasn’t enough room in her apartment due to her hoarding

 

She spent most nights at his house ,had a parking stall there and a key to his house.

 

They had an exclusive sexual relationship and were considered by friends to be a couple. Their daily routines revolved around each other

The Law

• The generally accepted characteristics of a marriage-like relationship set out many decades ago in Molodowich v. Penttinen, 17 R.F.L. (2d) 376, 1980 CanLII 1537 (Ont. Dist. Ct.): shared shelter, sexual and personal behaviour, the provision of services, social activities, children, economic support and the social perception of the couple;
• A shorter list of five considerations or factors identified in the much more recent decision of Justice Matthews in McDowell v. Andrews, 2018 BCSC 2216 at para. 23; and
• The well-established approach to the factors and the evidence in determining whether a relationship is marriage-like.

Addressing this approach, the trial judge recognized that the factors are not to be treated as a checklist and the presence or absence of any particular factor is not determinative, based on leading authorities. Instead, each relationship must be assessed based on a contextual and holistic approach to the evidence, recognizing the diversity of spousal relationships and how they are structured: at para. 60 citing Austin v. Goerz, 2007 BCCA 586 at para. 58.

It is the intentions of the parties plural that is identified as a factor and, in Mother 1 v. Solus Trust Company Limited, 2021 BCCA 461, as a factor that must be considered in deciding whether a relationship was marriage-like. Mother 1 also provides a finding of mutual intention is not a prerequisite as explained in Weber. That explanation informs what I see as the requisite approach to considering the parties’ intentions:

[23]      The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]      The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

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[30]         Similarly, Jones v. Davidson, 2022 BCCA 31, endorsed a contextual characterization of the relationship that may or may not include a party’s subjective intention. The Court opined, “subjective evidence, where there is evidence of such, may be tested by reference to the objective evidence”, which, in turn, may address a wide assortment of characteristics or indicia: Jones at para. 24 (emphasis added).