Couple Found to Be In Marriage Like Relationship Despite Two Residences

Marriage Like Relationship Despite Two Residences

Re Richardson 2014 BCSC 2162 is becoming one of a number of cases that have now found couples to be living in a marriage like relationship despite having two residences.

The FACTS

The Deceased died in 2014, without will .The Applicant C claimed to be a common-law spouse of deceased.

C sought a grant of administration without will , but the brother of deceased claimed that C’s was not the deceased’s spouse.

C made application for grant and succeeded.

C and the deceased presented themselves as couple to friends and community.

The deceased was involved with C’s children and acted as father figure to them.

Although C and the deceased maintained separate residences, they spent time at each other’s residence.

The Residences were maintained due to couple’s work and family commitments in different locations.

As there was common-law relationship, C was entitled to money from deceased’s estate.

THE LAW

a) Was there a marriage-like relationship?

19 Section 130(a) of WESA states that, if a person dies without a will, administration of the deceased person’s estate may be granted to “the spouse of the deceased person …” The applicant says she is the spouse of Mr. Richardson; the disputant disagrees.

20 Section 2 of WESA defines a spouse as follows:

When a person is a spouse under this Act

2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a 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 2 years.

21 If the applicant is the spouse of Mr. Richardson s. 20 of WESA applies:

Spouse but no descendants

20 If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.

22 A leading authority with respect to the meaning of “marriage-like relationship” (sometimes also referred to as “cohabitation”, Campbell v. Campbell, 2011 BCSC 1491 (B.C. S.C.) at para. 80) is Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.):

[16] 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 inter-relationships broadly described by the words “cohabitation” and “consortium”:

(1) SHELTER:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(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?

(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?

(3) SERVICES:

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?

(4) SOCIAL:

(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?

(5) SOCIETAL:

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?

(7) CHILDREN:

What was the attitude and conduct of the parties concerning children?

23 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, [1999] 2 S.C.R. 3 (S.C.C.) at para. 59; cited in Austin v. Goerz, 2007 BCCA 586 (B.C. C.A.) at para. 57; the Court of Appeal equated “conjugal” with “marriage-like” in the same paragraph).

24 In Austin, at para. 58, the Court of Appeal also adopted the following statement from a Saskatchewan case (Yakiwchuk v. Oaks, 2003 SKQB 124 (Sask. Q.B.)):

[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. …

[Emphasis added by the Court of Appeal]

25 Turning to the evidence, there is no serious dispute that the applicant and Mr. Richardson had a loving and intimate relationship. As the disputant deposes, they “loved each other and they had a good relationship.” Other evidence from the disputant confirms the intimate nature of the relationship. In addition, there is no dispute that the relationship lasted more than two years. The evidence does not include a specific date of cohabitation but the relationship started in 1999 and there is evidence that they were known as a couple on Gambier Island in 2002.