The BC Court of Appeal in Mother 1 vs Solus Trust et al 2021 BCCA held that the mutual intent of both parties is not a prerequisite to finding that a marriage like relationship existed at law.
The wealthy deceased died intestate leaving five children born of five women. He did not marry any of them and spent time with all of them and provided financial support and gifts.
Mother 1 did not know of the existence of the other four women. The judge described the deceased as a “playboy”.
After reviewing a number of criteria necessary to qualify as a spouse and S2 WESA the appeal court confirmed that Mother 1 never lived in a marriage like relationship with the deceased for two years as is required.
In Robledano v. Queano, 2019 BCCA 150 it held that the requisite two years of a marriage like relationship need not immediately precede the intestate’s death:
[40] Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.
However, a WESA claimant and the intestate must remain spouses at the time of the death in order to advance a claim: Robledano at para. 43.
If the parties ceased to be spouses before the intestate’s death because their marriage like relationship was “terminated” by one of them, there will be no legal entitlement to advance a claim against the estate as a spouse (s. 2(2)(b)).
According to Robledano, in deciding whether a party has terminated the marriage like relationship, a judge must:
[55] … consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence 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 fact and law. Where a trial judge has correctly identified the standard, and has 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.
A finding of mutual intent is not a prerequisite to finding that a marriage like relationship existed at law.
It was explained this way in Weber v. Leclerc 2015 BCCA 492
[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”.
The determination of a marriage like relationship is a “question of mixed fact and law that requires a broad approach”: Weber at para. 22.
The appeal Court will not interfere with it “absent a material error, a serious misapprehension of the evidence, or an error of law”: Boyd v. Foster, 2020 BCCA 177 at para. 48, citing Hickey v. Hickey, [1999] 2 S.C.R. 518 at para. 12, 1999 CanLII 691;
