The criteria generally speaking for a marriage- like relationship are as follows, as recently laid out in McFarlane v. Goodburn Estate 2014 BCSC 1449:
The question of whether a couple is to be regarded as having had a marriage-like relationship can be answered having regard to objective and subjective criteria.
The nature of the objective test and its limitations were described by Justice Cory in M. v. H.  2 S.C.R. 3, at para. 59:
Some years ago the Vancouver Sun ran a feature on dysfunctional families and reported that one in three British Columbians expect to be disinherited by their parents.
Practising estate litigation for over 40 years, it is easy to believe there are more dysfunctional than functional families. Indeed the dysfunctional family is the bread and butter of our practice. With the growing number of second marriages and blended families, the numbers are ever increasing.
In this article wehope to share some insights into dysfunctional families. IWe have no scientific expertise, only a wealth of practical experience dealing with the financial, emotional and psychological aftermath of such families.
WHAT IS A DYSFUNCTIONAL FAMILY?
Most of us grow up believing our own family is “normal”. It is only with life experience that we may come to recognize there is perhaps “something unusual” about our own upbringing and family life. We may also come to realize that many families are unfortunately not the happy, healthy families to which we all aspire.
Typically a dysfunctional family is one where the relationships between parents and children are strained and unnatural. Although there may be many different root causes, such families usually involve one or more family member with a serious problem that impacts every other member of the family. In turn, the other family members adopt atypical roles and behavior that allow the family to function on a basic level. For example, an older child may assume a caretaking role towards younger siblings to cover for an alcoholic mother.
A dysfunctional family often means parents fail to adequately provide for their children’s emotional, psychological and/or physical needs. Such children often suffer from low self-esteem all of their lives. Needless to say, this impacts every aspect of their lives from jobs to marriages to financial security.
Many families may seem normal at first glance. Scratch the surface, however, and some surprising relationships are exposed. For example, a recent case involved a family who, four days before the death of the patriarch, learned that he had another family in another city. You can imagine the profound shock and grief caused by this deception. The surviving family questioned their basic beliefs about who they were.
TYPES OF DYSFUNCTIONAL FAMILIES
The following are some examples of patterns occurring in dysfunctional families. Although classifed under various titles, there is often a great deal of overlap as often many problem behaviours occurs in the same family.
In this scenario one or both parents have addictions relating to drugs, alcohol, gambling, sex, work or food. Any such addiction can clearly have strong negative effects on other family members. One case we had involved a crack cocaine addict who was disinherited by his father after moving in with him and turning his home into a crack house.
Alcohol abuse is far more common and is extremely destructive as well.
2) Physical Violence
In such families, one or both parents use physical violence as a means of control through intimidation. The children may be the victim of violence, may be forced to witness their mother being beaten, to participate in punishing siblings or simply may live in fear of explosive outbursts. Such children frequently grow up with anxiety and depression issues. What is more, they are far more susceptible to abuse themselves. Sons raised in such families are at a much higher risk of becoming abusive husbands while the daughters more often become victims of violence.
3) Lack of Emotional Support
In these families, one or both parents fail to provide their children with adequate emotional support (often they also fail to provide basic physical and financial care at the same time). For example, one case involved a man who had simply been ignored as a child and left to fend largely for himself. He grew up to be an emotional cripple who completely lacked social skills and lived a very isolated existence. Thus he was awarded a large share of his parents’ estates. He would need those funds to survive since he was effectively unemployable.
4) Religious Fundamentalism and Rigidly Dogmatic Beliefs
Such families frequently involve parents who exert a strong authoritarian control. These families rigidly adhere to a particular belief, sometimes religiously or culturally based. Compliance with cultural or religious expectations is not expected, it is demanded.
For example we had a one case involving an overly strict mother who put down the family dog because her daughters girls did not keep their room clean enough.
A more extreme example of such behavior would be the family “honour killings” we read of from time to time. These involve male family members killing a female member because she is believed to have “brought shame” on the family.
5) Overly Possessive Parents
We have had many cases involving overly possessive parents who exploit their children, treating them as possessions whose primary purpose is to respond to the parents’ needs. They often do not encourage their child to become independent. This sometimes results in this scenario where one child, typically the youngest, never leaves home. Instead the child cares for the parent until death and is often “rewarded” or “compensated” for his or her “sacrifice”. Most often the other siblings view him or her as a freeloader.
It is sometimes amazing to hear the childish emotions these situations continue to evoke in adult children. In one case we represented a youngest child who had never left home and who was rewarded with privileges and a larger inheritance than his 4 older siblings. At the examinations for discovery when the older sister was questioned as to why the others hated our client , she responded “Because he was allowed cheese sandwiches before bed, and we were not.”
5) Sexual Abuse
As more cases of family sexual abuse surface, it is clear that sexual abuse by anyone but especially a parent will produce lifelong emotional scars for the victim. Typically it is the father or stepfather who sexually abuses a daughter or stepdaughter. It is shocking however, how frequently mothers ignore the disclosures of abuse and deny that their husband (the breadwinner and meal ticket) could have perpetrated such acts. This failure to believe and to protect the child only aggravates an already difficult situation.
One case we had involved the death of a father who had divided his estate in equal shares among his children and one grandson. When his daughter was questioned as to the motives for such a distribution, she disclosed that her father had sired this son. .
Every family varies greatly in the frequency and severity of dysfunctional interactions.
In dysfunctional families children may be forced to take sides in conflicts, they may be ignored, discounted, criticized or abused. Other parents may be inappropriately intrusive, overly involved and protective. Many children of dysfunctional families complain that their parents were emotionally distant and uninvolved. The fundamentalist family may provide excessive rules while the addicted parents may provide no guidelines or structure. Some children may be rejected while their siblings receive preferential treatment. Children may be slapped, punched, kicked or emotionally abused and locked out of the house. Some children runaway or leave home at an early age. Others never leave.
The bottom line with all dysfunctional families is that such abuse and neglect inhibit the development of healthy adults with healthy relationships. As adults, such people often have difficulty in judging and trusting others and themselves. They often experience difficulties in their workplace, in their relationships and with their very identities.
What is more, in the world of the estate litigation, they are often disinherited.
New Family Law
In any event, it is important to keep an eye on family law developments, so this blog is intened only as the merest of an oversight of some of the changes to look for in family law, very soon.
I apologize for the loose format, but it is a composite of my own notes from a seminar on the topic.
It is complicated legislation that has taken years to develop, and may not in fact be quite yet finished in the details.
New act has the notion of ” family property” which is everything unless “excluded property”, with the notion of former “family purpose use” no longer being the test.
Property rights are extended to common law couples after 2 years
Family debt is defined and can be re- apportioned between the spouses- ie one spouse might be ordered to pay all or some of the other spouses debts
Spouse is defined as either – married, or common law for 2 years
But a party can get spousal and child support if they live together less than 2 years, if they have a child
“Family property” is defined
On date of separation what you own is family property unless it is excluded property
Same with property acquired after separation if acquired from a family property
Family property includes a share in a limited company
The property you bring into a marriage is excluded property, but the amount of any increase in value in the property, makes it family property
S85 sets out excluded property:
Inheritances, but not their growth in value
Property owned before the relationship
Non property related insurance
Property traceable back to excluded property
Excluded property increase in value is divided
If the property is outside BC, then the property can’t effectively be divided
Excluded property can be divided if it is significantly unfair not to divide it after consideration of the duration of the relationship and the direct contribution ( not indirect contribution any longer)
Can divide family debt and assets disproportionately, but now requires it to be significantly unfair
Valuation date is s 87 date agreement signed, or date of hearing
Date of separation can be important as it is the triggering event and what date is the actual date
Marriage agreements – can still opt out and court may set aside agreements for failure to disclose assets, debts, or other defect in the process
The other is significant unfairness due to length of time, intention of parties to achieve certainty, the degree to which the spouses relied upon the agreement
Make sure the other side gets good legal advice as there is a risk that the spouse can later argue they did not understand it
Court can order that spousal and child support can survive death and an order can be made against the estate for continued child support.
Claim For Common Law Spouse
Buell, Buell and Buell v Unger 2011 BCSC 351 involves an intestacy of the deceased and a contest between a purported common-law spouse and his previous wife of 21 years and their two children as to who inherits the estate.
The claim for common law spouse was dismissed and the family inherited the estate on the intestacy.
The court held that the defendant Unger had the onus of proving that she was a common-law spouse and that her evidence fell far short of proving that she
was living in a marriage like relationship with the deceased for a period of at least two years immediately before his death.
He for example spent many months at a time living on his boat I himself while she lived on the mainland where she worked.
The deceased Buell suffered from severe alcoholism and died intestate .
Ms. Unger cross-applied for a declaration that she was Mr. Buell’s common-law spouse as defined in s. 1 of the Estate Administration Act, R.S.B.C. 1996, c. 122 (the Act):
“common law spouse” means …
(b) 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 2 years immediately before the other person’s death.
Mr. and Mrs. Buell had separated in June of 2005 after 21 years of marriage.
The Court followed the BCCA decision of Gostlin v Kergin ( 1986) 3 BCLR (2d) 264 as follows:
“The framework for resolving the question of Ms. Unger’s status is found in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, 1 R.F.L. (3d) 448 (C.A.). In that case, the Court of Appeal considered the definition of “spouse” in the Family Relations Act, but its discussion of the “marriage-like” aspect of the definition (“lived together as husband and wife for a period of not less than two years”) is equally applicable to the definition with which we are concerned: see Harris v. Willie Estate, 2001 BCSC 143, 37 E.T.R. (2d) 220, and Janus v. Lachocki, 2001 BCSC 1702, 43 E.T.R. (2d) 49..
 At pages 267-8 of Gostlin (B.C.L.R.), Lambert, J.A., for the Court, said this:
But marriage does not suit every couple who want to share their living accommodation. For religious, moral, sexual, financial or other reasons they may be unable to marry or may prefer not to marry. Some couples may behave towards each other and towards the outside world as if they were married. Their relationship may be one of permanence and of commitment. They may eagerly embrace the obligations of s.57. Other couples may prefer quite a different relationship. They may want to retain their independence from each other. They may find long-term commitments stifling, and emotional interdependence cloying. They would shun the obligations of s.57.
Surely society can accommodate those who prefer to live together without commitment. If there are no children involved, there is no reason to force financial commitments on couples who do not want them. Independence should be a choice. But how can a couple exercise that choice except by not getting married to each other and not making any commitment to each other? If that is their wish, the expiry of two years from the start of their relationship should not force them into mutual commitments that they do not want.
The legislature has accommodated the diverse interests of different couples by use of the words “who lived together as husband and wife” in the definition of “spouse”. If a couple marry, then they are committed to the maintenance and support obligations of s. 57, no matter on what terms they live together. But if they do not marry, they are not committed to those obligations unless they lived together for not less than two years, and unless they do so as husband and wife.
In deciding whether a couple lived together as husband and wife, I would be guided by the scheme and intention of the Act itself. The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s. 57 as are voluntarily undertaken by a married couple. So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner have been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.
Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. 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.