Robledano v Queano 2019 BCCA 150 clarified the law with respect to the definition of spouse after two years living together in a marriage like relationship by stating that there was no necessity for the two years living together need be immediately preceding the deceased’s death.
The appeal court rejected the argument that an unmarried person can only be a spouse of a deceased person if they were living together at the time of death, and for at least two years immediately preceding.
The court referred to the definition of spouse under WESA:
2(1) unless subsection 2 applies, to persons or espouses of each other for the purposes of this act if they were both alive immediately before relevant time and:
a) they were married to each other, or
b) They had lived with each other in a marriage like relationship for at least two years.
(2) to person B been spouses of each other for the purposes of this act if:
A) In the case of a marriage, an event occurs that causes an interest in family property, as defined in part five of the family law act to arise, or
B) in the case of a marriage like relationship, one or both persons terminate the relationship.
To amplify the court’s reasoning as to the meaning of paragraph 2(1) (B) of WESA, the court examined the history of the British Columbia Law Institute, commenced in 2003, known as the Succession Law Reform Project. That project culminated in June 2006, entitled Wills, Estates and Succession: a Modern Legal Framework which was the draft of WESA.
The draft provision for which subsection two derived was in the following terms:
1.(2) for the purposes of this act, to persons or espouses of each other at a relevant time if, immediately before the relevant time, they
a) were married to each other, or have lived and cohabited with each other at anytime for a period of at least two years in a marriage like relationship.
The court seized on the word anytime and stated that there was no reason to believe that any change in the substance of this provision was intended when the draft attached to the institutes report was transformed into a bill.
The court also interpreted the words “had lived together” to be in the past perfect tense rather than the continuous tense “were living together”. The statue was professionally drafted and the use of the different tenses should be presumed to be deliberate.
Connor estate 2017 BCSC 978 could be a bit of a game changer for common law WESA spouses in the sense that the court finding that the parties were spouses could be an “expansion” of the concept of common law spouse.
Kent J found a long time couple to be common law spouses despite:
the parties maintained two entirely separate residences and did not live under the same roof;
each undertook their own separate domestic tasks such as meal preparation, shopping, tending to clothing and household maintenance;
no mingling of finances occurred;
sexual relations between them in their respective households were significantly reduced in the last two years;
Ms. Connor’s hospital records identified her marital status as single and indicated Mr. Chambers as an alternative contact identifying him as a “friend”;
Ms. Connor identified herself as “single” on her tax returns and Mr. Chambers identified himself as “separated” after 2012;
Mr. Chambers identified his wife as his “current spouse” in the spousal declaration for his municipal pension plan application in September 2011, a designation that was never changed;
in August 2013 Mr. Chambers declared for the purposes of his group benefits with Manulife Financial that he had no common-law spouse and he did not declare Ms. Connor as a beneficiary;
Mr. Chambers’ children had no involvement in the life of Ms. Connor and indeed the son was never even introduced to her; and
neither Mr. Chambers nor Ms. Connor displayed photographs of each other in their respective residences.
The application to determine if Chambers was a common law spouse was opposed by her five half siblings whom she did not know.
For much of the long time relationship the male partner Chambers lived with his wife and family and saw the female Connor when he could.
The Judge found that they never lived together under the same roof as a result of Connor being a hoarder and there was no room for her partner Chambers to reside in her residence.
She had left him her $410,000 RRSP and the Judge found it likely that while she died intestate, that she had prepared a will that had left him a substantial bequest, but the will could not be found.
Molodov/lch v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which was also relied on in the case referred to above, was invoked in a recent WESA decision to identify generally accepted characteristics of a “marriage-like relationship”, Richardson Estate (Re), 2014 BCSC 2162:
 A leading authority with respect to the meaning of “marriage-like relationship” (sometimes also referred to as “cohabitation”, Campbell v. Campbell. 2011 BCSC 1491 at para. 80) is Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (ONDC):
 I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human interrelationships broadly described by the words “cohabitation” and “consortium”
7 Guidelines to Common Law Relationships
(a) Did the parties live under the same roof?
(b) What vie re the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(d) Household maintenance,
(e) Any other domestic services?
(a) Did they participate together or separately in neighbourhood and community activities?
(b) 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):
a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) 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?
 Other authorities have emphasized that this is not a checklist and “these elements may be present in varying degrees and not are all necessary for the relationship to be found conjugal” (M. v. H.  2 S C R. Sat para. 59; cited in Austin v. Goerz 2007 BCCA 586at para. 57: the Court of Appeal equated “conjugal” with “marriage-like” in the same paragraph).
8 In Weber v. Leclerc 2015 BCCA 492, leave to appeal to SCC refused,  S.C.C A No 19, the Court again reviewed the case law respecting “marriage-like relationships”, noting:
 The parties’ intentions — particularly the expectation that the relationship will be of lengthy, indeterminate duration — may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.
 The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.
33 S. (W.A.) v. T. (D.W.) dealt with the breakdown of a long-term common-law relationship of approximately 20 years, in which both parties contributed financially and domestically, at least initially. The relationship was “fragile and uncertain” long before the couple separated, with Mr. T. developing serious drug and alcohol abuse problems at an early stage in the relationship. In relation to Ms. S.’s claim for spousal support, Groberman J. held that the court had no jurisdiction to grant such relief, because the application was brought seven weeks more than one year after the parties ceased to live together. Groberman J. also found that the parties had ceased to live in a marriage-like relationship long before the defendant physically moved out of their shared house. He stated at ¶21-23:
I reject the argument that the parties lived together after December 26, 2000. On that date, Ms. S. became aware that Mr. T. was having, and intended to continue to have, a romantic relationship with Ms. C. Ms. S. had clearly told him that he could not continue to live with her in those circumstances, and Mr. T. left. While Ms. S. may have had some hope that her relationship with Mr. T. could be resurrected, I find that there was no objective basis on which she could possibly have concluded that they were still living together.
In particular, I find that long before December 26, 2000, Mr. T. and Ms. S. ceased to have a marriage-like relationship. Aside from the pooling of financial resources, they had little to do with one another, and had very limited social interaction. They had had no intimate relations for over five years, and had not presented themselves as a couple to others for some time. Indeed, it is questionable whether the two were living together even before December 26, 2000, or were rather living separate and apart under the same roof.
34 S. (W.A.) v. T. (D.W.) was followed in Markin v. Gysel, supra. That case involved a four-year common-law relationship in which the parties had one child. After the man moved from the parties’ home, he voluntarily paid the woman $1,000 per month, plus expenses in relation to the home. With respect to when the parties ceased to live in a marriage-like relationship, Joyce J. held that the parties separated before the defendant actually moved out of the home. Although the parties continued to eat meals together and share the same bed for a time, the defendant had made clear his intentions that he did not want the relationship to continue, sexual relations terminated shortly thereafter, and he subsequently moved into a spare room before finally leaving the home.
35 Another relevant case is Thompson v. Floyd, 86 B.C.L.R. (3d) 56, 2001 BCCA 78 (B.C. C.A.). That case involved a common-law relationship that extended over a number of years. For health reasons, the plaintiff left the parties’ home and moved in with her family, although she continued regular communication and visits with the defendant. Despite the fact that the parties were physically separated, McEachern C.J.B.C. held that the trial judge had not erred in concluding that the marriage-like relationship continued, at least until the last time the couple had sexual relations. He noted that it was significant that neither party made a direct statement that they regarded the relationship to be over until the parties began discussing the sale of their home, a few months before the action was commenced (at ¶32).
36 Thus, it is clear from the cases that the point at which the parties ceased living in the same residence is not necessarily determinative of the date their marriage-like relationship terminated (see also Hughes v. Boyd, 2006 BCSC 1669 (B.C. S.C.) at ¶4, agreeing that the key issue is when the “marriage-like” quality of the relationship terminated, not simply when the parties ceased to live under the same roof). The key factors in determining when a couple have ceased living in a marriage-like relationship include the absence of sexual relations, a clear statement by one of the parties of his or her desire to terminate the relationship, physical separation of the parties into different rooms of the same house or different residences, or the couple no longer presenting themselves to the outside world as a couple. Additionally, the method in which the spouse filed income tax returns may be a relevant consideration (seeOswell, supra, at ¶7), and provides objective evidence of whether a person considered himself or herself to be involved in a marriage-like relationship.
37 In this case, Mr. Baker took clear action to terminate the marriage-like relationship on August 14, 2003. He moved his furniture out of the House and ceased to reside there. The parties ceased to have an intimate relationship at that time. He made clear that he did not want the relationship to continue. After this date, he was away most of the time. By October of 2003, Mr. Baker was making clear attempts to remove Ms. Eisener from title to the House. The plaintiff could not reasonably have believed that the relationship would continue after that point. Further, she identified herself as being single on her 2002 income tax return. Additionally, her behaviour in public and toward Ms. Rollin and Ms. Cousson contradicts her testimony that the parties remained in a marriage-like relationship until December 2004.
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:
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 support and 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 conjugal. … 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”.
22 In my view, there were sufficient objective indicators in this case for the couple to be regarded as spouses. They shared the plaintiff’s home and they shared her bed. The plaintiff provided care and support to Mr. Goodburn to the degree and in the manner of someone who was more than simply a friend. In their interactions with members of her family, and in their other social interactions, they would have appeared to function as a unit.
23 The subjective test, based on the court’s assessment of the parties’ degree of mutual commitment, is as stated by Justice Lambert in Gostlin v. Kergin (1986),  5 W.W.R. 1, 3 B.C.L.R. (2d) 264 (C.A.). Referencing the support obligations set out in s. 57 of the Family Relations Act, R.S.B.C. 1979, c. 121, he stated:
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 had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disable 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.
24 As with any civil case, this aspect of the plaintiff’s claim need only be proven on a balance of probabilities. In my view, the reasonable conclusion to be drawn from the facts of this case is that the answer to that question would have been “Yes”.
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.
The Family Relations act will be replaced by the new Family Law act, on or about March 18 next.While disinherited.com does not venture into matrimonial disputes, the fact is that the laws of family and estates are increasingly becoming interwoven, and not necessarily smoothly at all.
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.
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.