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Swingers Not In Marriage Like Relationship

CFM v GLM 2018 BCSC 815 involved a determination as to whether the claimant was a spouse as defined by section 3 of the Family Law act. In order to succeed, the claimant must establish that she lived with the respondent in a marriage like relationship for a continuous period of two years.

The couple participated in what is known as a swinging lifestyle, but the judge expressly stated that since it was a consensual arrangement, he did not factor their lifestyle into his finding that they were not in fact in a marriage like relationship.

Specifically, the judge found that the claimant did not live with the respondent on anything like a continuous basis and there were regular, perhaps annual intervals will the parties separated and saw other people. In particular the parties acknowledged that they each had regular affairs during the years 2012 – 2015, inclusive, and the court found as a fact that the party separated repeatedly during their relationship and that these estrangement. Sometimes lasted a number of months.

LEGAL PRINCIPLES

A spouse under the family law act can claim support and a shared interest in family property. No one factor governs whether a relationship is marriage like. Every case must be evaluated individually considered all factor supporting or negating spousal status. Austin v Goerz BCCA 586 AR Para. 58.

In Dey v Blackett 2018 BCSC 244 at paras. 192-196 the court provided the following overview of the principles to be borne in mind in determining a marriage like relationship:

192. 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 of them are treated as being determine the stove of the question ( Austin v Goerz)

193. While a checklist approach to this question is not appropriate, it can still be helpful during the analysis to consider the presence or absence of commonly accepted indicators of the sorts of behavior that society, at a given point in time, associates with the marital relationship Weber v Leclerc 2015 BCCA 492 at para. 25.
A frequently cited authority has identified these indicators as including;

‘ shared shelter, sexual and personal behavior, services, social activities, economic support and children, as well as the societal perception of the couple’ M v H (1999) 2 SCR at para. 59
194. While financial dependence was at one time considered an essential aspect of a marriage like relationship, this is no longer so. Austin at pars. 55-56

195. The intentions of the parties, particularly whether they saw the relationship as being of a lengthy indeterminate duration, will be important to the determination as was the relationship was marriage like. However, evidence of their intentions must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship. Weber at paras. 23-24
in other words, subjective or conscious intentions may be overtaken by conduct such that will last a person living with another might not say he or she was living in a marriage like relationship, the reality is that the relationship has become such Takacs v Gallo (1998) 48 BCLR 265 BCCA

196. In weighing the various factors, it is also an error to give undue emphasis to the future plans of a couple, in contrast to the current realities of their respective situations. Takacs at para. 58

A party to a relationship that lacks such characteristics is not entitled to pursue a family law action, as the person is not a spouse. There is no middle ground either a person is a spouse or is not. Gostlin v Kergin (1986) 3 BCLR 264 BCCA at para. 16. People may live together continuously and into dependently and yet fail to establish that they developed the kind of psychological and emotional union associated with marriage. Takacs v Gallo (1998) 48 BCLR 265 BCCA at para. 55.

The marriage like commitment must be combined with sufficient evidence of two years of continuous cohabitation. The family law act has no application to more transitory connections. There is of course unsubstantial unpredictability in the progress of nascent relationships and this is why the legislature fixed it to your standard before imposing legal matrimonial obligations on common-law couples without children Parke v. Veale 2015 BCSC 2554 at para. 79.

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