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.