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Profanity Doesn’t Terminate Marriage Like Relationship

Profanity Doesn't Terminate Marriage Like Relationship

Re Landriault Estate 2019 BCSC 1089 held that one party calling the other a profanity was insufficient to terminate a long-standing marriage like relationship.

The deceased died intestate and three adult children contested a claim of a spouse asserting a long time marriage like relationship with the deceased.

The court determined the case by way of a summary trial based on affidavits.

The children alleged that the surviving spouse terminated the marriage like relationship in or about 2011, but had scant evidence of any such termination.

The court reviewed the Court of Appeal decision in Robledano v Queano 2019 BCCA 150 that stated that section 2 (2) (b) WESA dealing with a person ceasing to be a spouse under the act when one or both persons terminate the marriage like relationship.

The court stated:

“The question of whether a person has terminated the relationship requires a judge to 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 law and fact.”

The court reviewed the various series of factors from Molodowich v Pentinnen ( 1980) RFL 376 , which are often applied by the courts to determine whether a marriage like relationship exists.
One of the first of several questions is did the parties live under the same roof and what were the  sleeping arrangements. The court found that they did not live under the same roof due to her medical needs, when she was moved into a care home in or about 2011.

With respect to the question of sexual relations the court found that the parties had not had sexual relations since 1997 when the deceased was injured in a motor vehicle accident. The spouse however, spent virtually all day every day with her and ate meals with her and weathered her outbursts.

The court concluded that the only objective evidence that the deceased terminated the spousal or marriage like relationship with the spouse was that she referred to him and derogatory terms, called him profane names, ordered him out of her room and exhibited other outbursts of temper in his general direction.

The deceased, however, was known for such outbursts and was also rude to staff.

The judge specifically stated at paragraph 70 “ I find that calling someone asshole, particularly when the utterer is prone to outbursts, was insufficient to terminate this long-standing marriage like relationship. So are comments like not wanting to see his face , nor caring where he was.”

The court concluded that the marriage like relationship had not been terminated, and the spouse was awarded the estate in accordance with the intestate provisions set out in section 21 of WESA.

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