Letters of Administration Revoked For Failure to Prove Common Law Spouse Marriage Like Relationship
Souraya v Kinch 2012 BCSC 1252 involves a case where the grant of letters of administration revoked on the basis that the deceased’s alleged common-law spouse,failed to prove that she met the definition of common-law spouse as per section 1 of the Estate Administration Act, which defines a common-law spouse as either:
1) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common-law, or
2) a person who has lived and cohabited with another person in a marriage like relationship, including a marriage like relationship between persons of the same gender, for a period of at least two years immediately before the other person’s death.
The deceased was gunned down in his motor vehicle at the age of 36, apparently a victim of gang violence.
He died without leaving a will or children.
The defendant Kinch contended at the time of his death that she was his common-law spouse and on that basis, she claims sole entitlement to his estate and the right to administer the estate.
Kinch had earlier applied for and was granted letters of administration, but the sister of the deceased brings this action to set aside the order granting letters of administration to Kinch.
The court held that the grant should be set aside on the basis that Kinch was not, and had failed to prove that she was a common-law spouse of the deceased as per the after said definition.
The court found that there were many factors which pointed to a lack of permanent reason long-term marriage like commitment to each other.
Some of the criteria which the court relied upon were:
- that the deceased maintained a separate residence from Kinch and intended to do so indefinitely,
- there was a lack of significant financial interrelationships,
- and there was a relationship characterized by conflict and breakups.
The decision gives a very good review of recent law relating to common-law relationships.
The following extract is important:
 In Austin v. Goerz, 2007 BCCA 586, the Court of Appeal held that neither capacity to legally marry nor financial dependence upon the deceased are required in order to come within the definition. The Court applied the decision of the Supreme Court of Canada in M. v. H.  2 S.C.R. 3, in which the Court considered the requirements of a “conjugal” relationship, for purposes of the statute under consideration in that case. In Austin, at para. 57, the Court quoted from M. v. H. as follows:
 Apposite is the more recent decision of the Supreme Court of Canada in M. v. H.,  2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.0.1990, c. F.3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:
59 Molodowich v. Penttinen (1980), 17 R.F.L (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities,
economic supportand children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be coniuoal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
[Emphasis in original]
 In Austin the Court of Appeal again held (as in Takacs) that how the parties arranged their financial affairs is but one factor to be considered. The Court stated that the presence or absence of any particular factor is not determinative of whether a relationship is marriage-like, observing that, equally, there is no checklist of characteristics that will invariably be found in all marriages. The Court concluded that the chambers judge (at para. 62):
 …properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”
 The correct approach, therefore, is “holistic”, meaning that all appropriate factors should be considered, without any particular factor being considered determinative.
 As the authorities set out, many objective indicators and factors may be considered. Several such factors are referred to in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, (CA), where Justice Lambert stated (at 268):
Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?
All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.
 Takacs, and M. v. H., cited in Austin, supra, refers to the list of generally accepted characteristics of a conjugal relationship as set out in Molodowich v. Penttinen, (1980) 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). The list of factors referred to in Molodowich is as follows (at para. 16):
- Did the parties live under the same roof?
- What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) Sexual and personal behaviour:
- Did the parties have sexual relations? If not, why not?
- Did they maintain an attitude of fidelity to each other?
- What were their feelings toward each other?
- Did they communicate on a personal level?
- Did they eat their meals together?
- What, if anything, did they do to assist each other with problems or during illness?
- Did they buy gifts for each other on special occasions?
What was the conduct and habit of the parties in relation to:
- Preparation of meals,
- Washing and mending clothes,
- Household maintenance,
- Any other domestic services?
- Did they participate together or separately in neighbourhood and community activities?
- What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (Economic):
- What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
- What were the arrangements concerning the acquisition and ownership of property?
- Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
What was the attitude and conduct of the parties concerning children?
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