Trevor Todd and Jackson Todd have over 65 years of combined experience in estate litigation including handling marriage like relationships.
A large amount of decided caselaw ahs now developed in British Columbia as to what constitutes a marriage like relationship.
This frequently occurs in common law relationships where one party asserts they were in a marriage like relationship for 2 years or more and the opposing party denies they were and that they only “dated”.
There are now a few cases that have determined that parties were in a marriage like relationship when they never even cohabitated.
The BC Court of Appeal in Jones v Davidson 2022 BCCA 31reviewed the law and stated inter alia:
Much attention in the jurisprudence has been on the difference, if any, between cohabiting and being in a marriage‑like relationship, as well as on the content of the words “marriage‑like relationship”. Indeed, while Eric Jones submitted that Ms. Davidson could not succeed because the parties had not resided together in one place for the requisite two years, he did so relying on the requirement for cohabitation, a submission he said made an evaluation of whether the relationship was marriage‑like unnecessary. The judge rejected this submission, referring to Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, and proceeded on the basis that the state of cohabitation overlaps with being in a marriage‑like relationship.
[17] It seems to me, however, that to be true to the legislation, the starting place for an enquiry into status as a common law spouse should be the first of the three qualifications: did the survivor “live with” the deceased for the requisite period? I say this recognizing that the concept of living with another person must be susceptible to some factual fluidity to take account of the complexities of modern life including employment and education needs, and geography. Even so, the question I would pose here is whether the term “live with” connotes a degree of “withness” or sharing that is independent of the indicia of a marriage‑like relationship and independent of the character of the relationship.
[18] For completeness, I will observe that there are hints in cases that “living with” another person does not refer to the nature of the relationship. In Hodge, Justice Binnie explained that at least in the context of the legislation then before the court, cohabitation is not synonymous with co‑residence. He said at para. 42 that two people “can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof”. In that discussion, co‑residence and “living with” are interchangeable.
[19] Further, in discussing whether parties have been in a marriage‑like relationship, courts have acknowledged that a party may live with another before the relationship transforms into one that is marriage‑like. For example, in Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.), Madam Justice Newbury for the majority observed at para. 53:
… subjective or conscious intentions may be overtaken by conduct such that whilst 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.
[20] Considering at least these authorities, it seems to me that a different factual enquiry may be engaged by the use of the words “live with” than is engaged by the words “cohabit” and “marriage‑like relationship.” However, I do not propose to do more than raise this issue here. In any case, sharing the same residence is a consideration on the second and third qualifications which I now turn to – “cohabit” and “in a marriage‑like relationship”. Those words have been fully considered by the parties and the judge. As did the judge, I consider there is overlap between those words and that “cohabit”, for practical purposes, should be treated as encompassed by the words “marriage‑like relationship”.
[21] How to characterize a relationship between two parties at a given time is not capable of precision: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.); Takacs. In Austin v. Goerz, 2007 BCCA 586, Mr. Justice Frankel explained for the court why there can be no checklist for determining the existence of such a relationship:
[58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:
[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.
[Emphasis added in by Frankel J.A.]
[22] In Weber v. Leclerc, 2015 BCCA 492, this court addressed the existence of a marriage‑like relationship in the context of the Family Law Act, S.B.C. 2011, c. 25. In passages equally apt to a consideration of the term “marriage‑like” in the definition before us, Mr. Justice Groberman explained:
[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”.
[25] Ms. Leclerc argues that approaches like that taken in Molodowich v. Penttinen [(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.)] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like Molodowich are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.
[23] The list of indicators set out in Molodowich, referred to in Weber, was mentioned with approval by Justices Cory and Iacobucci at para. 59 of M. v. H., [1999] 2 S.C.R. 3, in the context of what was in that case called a conjugal relationship:
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. 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”.
Cohabitation has been defined to mean a mutual intention to continue a relationship which is only ended when one party regards the relationship to be at an end and demonstrates that this particular state of mind is a settled one: Gosbjorn v. Hadley, 2008 BCSC 219 at para. 137, referring to Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357 [Hodge].
…
[37] In my view in the context of the Act, cohabitation requires a mutual intention to be together as more than just roommates. Cohabitation must involve an intention to share responsibilities – although one party can provide more support than another. In this respect there is an overlap between cohabitation and being in a marriage-like relationship. I note that this overlap was eliminated in the successor to the Act, the Wills, Estate and Succession Act, S.B.C. 2009, c. 13, s. 2(1), where the word cohabited was removed from the definition of spouse.
[38] I do not consider that a determination of whether two people lived and cohabited together should be made in isolation from consideration of whether they did so in the context of a marriage-like relationship. As the authorities make clear a holistic approach is required.
In J.M.S. v. G.L.S. 2009 BCSC 1803, Barrow J. summarized the applicable legal principles as follows (at para. 19):
[19] Whether someone is in a marriage-like relationship depends in part on how that person views the relationship. As was pointed out in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.), the starting point for the analysis is whether, if asked, the people in the relationship would consider themselves to be in a committed long-term financial and moral relationship. If so, then the relationship is properly characterized as marriage-like. As also pointed out in Gostlin, there may be objective circumstances which are relevant to the determination of the issue. Among other things, if the parties refer to each other as spouses, that can be significant. So, too, can their living arrangements: if they live together, that is significant; if they live apart, that, too, is important. If they own their accommodation jointly, that is of significance. So, too, is the question of whether they share other property in joint tenancy. If they share their finances and bank accounts or take common vacations or, in other respects, share their lives, those are matters to be taken into account. If they entertain jointly or have an exclusive sexual relationship, those too can be hallmarks of a marriage-like relationship (see generally Conquergood v. Dalfort, 2007 BCSC 1556, at para. 46). No single feature of the relationship is likely determinative of its character. Further, there is no “checklist” of characteristics that must be found in a relationship to elevate it to the status of marriage-like (Austin v. Goerz, 2007 BCCA 586).
[11] 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. [1999] 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:
[57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 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 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. 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”.
[12] 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):
[62] …properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”
[13] The correct approach, therefore, is “holistic”, meaning that all appropriate factors should be considered, without any particular factor being considered determinative.
[14] 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.
