BC Estate Lawyer-Marriage Like Relationships

Trevor Todd and Jackson Todd have been practicing law in the area of contested estates for over sixty combined years, including the enormous range in what are now considered to be marriage like relationships.


Mother 1 v Solus Trust et al 2021 BCCA 461 reviewed the law on marriage like relationships and concluded that Mother 1 was not a spouse within the meaning of WESA.

Mother 1 was not married to the deceased and thus had to prove on a civil standard that she lived with him in marriage like relationship for at least 2 years.

The trial judge instructed himself on the definition of a marriage like relationship and described it as an “elastic” concept and one that engages a multi faceted analysis .

He enumerated various factors for consideration, citing the often-referred to case of Molodowich v. Penttinen, [1980] O.J. No. 1904, 1980 CanLII 1537 (Dist. Ct.). He noted that the list of factors delineated in Molodowich “cover virtually every aspect of life a couple could engage in together”

Relying on Weber v. Leclerc, 2015 BCCA 492, he cautioned himself against taking a “checklist approach” to the issue before him. Instead, it was his obligation to consider the matter “holistically” and to examine all relevant factors in deciding whether there was a marriage like relationship of at least two years between Mother 1 and the deceased.

The judge specifically noted that a legal capacity to marry is not a prerequisite to finding a marriage like relationship . Nor is financial dependence .
The parties do not have to co reside .

Their subjective intentions are considered; however, one party’s denial of an intention to enter into or remain in a marriage like relationship is not fatal to the analysis. Instead, the credibility of that denial will be tested against objective indicators and may not be believed if “all of the surrounding circumstances strongly imply the contrary” (at paras. 140–42, citing Dey v. Blackett, 2018 BCSC 244 at para. 235 and other cases).

The determination of a marriage like relationship (or not) is a question of mixed fact and law that requires a broad approach- ( Weber v Leclerc)

After the judge rendered his verdict, this Court released its decision in Robledano v. Queano, 2019 BCCA 150, in which it held that the requisite two years of a marriage like relationship need not immediately precede the intestate’s death:

[40] Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.

However, a WESA claimant and the intestate must remain spouses at the time of the death in order to advance a claim: Robledano at para. 43.
If the parties ceased to be spouses before the intestate’s death because their marriage like relationship was “terminated” by one of them, there will be no legal entitlement to advance a claim against the estate as a spouse (s. 2(2)(b)).

According to Robledano, in deciding whether a party has terminated the marriage like relationship, a judge must:

[55] … consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence 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 fact and law. Where a trial judge has correctly identified the standard, and has 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 intention of the parties is a factor that must be considered” in deciding whether a relationship was marriage like (at para. 141). Evidence of “mutual intent” to be in a relationship of an indeterminate or lengthy duration is likely to carry significant weight in the analysis (at paras. 141–42). However a finding of mutual intent is not a prerequisite to finding that a marriage like relationship existed at law. It was explained this way in Weber:

[23] 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.

[24] 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”.

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