Canada: Couple Never Lived Together, But Court Finds They Are "Spouses" For BC Estate Law

Last Updated: July 3 2017
Article by Geoffrey W. White and Emily Clough

The definition of spouse in BC's Wills, Estates, and Succession Act says that two people are "spouses" if "they have lived with each other in a marriage-like relationship for at least two years." Can two people be spouses if they have never actually lived together in the same home? This question was considered in the recent decision of Re: Connor Estate 2017 BCSC 978.

At the date of her death in 2015, Patricia Connor had been in a sexually intimate relationship with Joe Chambers since 1993. They never lived together. In fact, Mr. Chambers was married to another person from 1993 to 2010, only separating in 2012. He had not told his wife about his relationship with Ms. Connor. When he left his wife in 2012, Mr. Chambers didn't move into Ms. Connor's condominium. He said they did not move in together because she had a hoarding illness. He did have a key to her place.

Mr. Chambers and Ms. Connor did text or talk almost every day. They presented themselves to friends as being a couple, and frequently vacationed together. Ms. Connor had named Mr. Chambers as the beneficiary of her RRIF, and stated that she had made a Will that named him as the primary beneficiary. However, the Will could not be found.

Without a Will, Ms. Connor's substantial estate must be distributed to her next-of- kin according to the rules of intestacy. If Mr. Connor was her spouse, the distribution will be solely to him. If he was not, then Ms. Connor's next-of-kin will be five half-siblings from her father's subsequent relationship, and whom she did not know.

The court first confirmed that, even though Mr. Chambers had been married to another person during most of his relationship with Ms. Conner, it is possible under BC estate law for a person to have two spouses at the same time: a legally married spouse and a "marriage-like" spouse.

The court then determined that Mr. Chambers was Ms. Connor's "marriage-like" spouse, finding that: "Like human beings themselves, marriage-like relationships can come in many and various shapes".

The court confirmed that "there is no checklist of characteristics that will invariably be found in all marriages." "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." But the question "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"."

In the end, the court was heavily impressed with the closeness of their relationship. Ms. Connor considered Mr. Chambers to be her "romantic and life partner." "[T]hey intended to spend their time together, and provide ongoing mutual emotional and intimate support, albeit maintaining separate residences should Ms. Connor not have been able to overcome her hoarding challenges."

Unless the decision is changed upon appeal, Ms. Connor's estate will pass fully to Mr. Chambers. Might there be some grounds for an appeal?

On a broad interpretation of the decision, it could be argued that the court put too much emphasis on just the "marriage-like" aspect of the relationship. The definition of spouse has two elements that must both apply during the two year period: that the relationship be "marriage-like", and that the people have "lived with each other." Although past cases have not been strict about "co-residence", this decision would be the first to find a spousal relationship in the complete absence of any living together in the same home (just a pattern of vacations together.) The "lived with each other" portion of the test would now have little meaning if spousal relationships can arise solely from establishing a marriage-like relationship.

Nonetheless, the decision can also be interpreted on a more narrow basis. The court accepted that Ms. Connor's hoarding illness was the reason for not living together. That implies that they wanted to live together in the same home, but were prevented from doing so by an involuntary condition. Past cases have accepted illness, work, or immigration status as reasons for living separately that did not prevent spousal relationships. Typically though, those same cases have also involved at least some initial period of living together in the same home followed by a separation; not a complete absence of living together. Even on this narrow interpretation, the decision significantly expands the definition of spouse.

Why does this decision matter to you? If the decision is interpreted broadly, then any person who is currently in a close intimate relationship of two years or more may need to reconsider whether that status could be considered spousal solely because it is 'marriage-like' – even though couple has never lived together in the same home. If the decision is interpreted more narrowly, that same person may still need to clarify the reasons that the couple has not lived together. Has the couple made a choice to not live together, and therefore to not be spouses? Or on the other hand, if the parties do wish to be spouses, should they document the involuntary reasons for their separation? Would those reasons need to be as objective as illness, work or immigration status? Or could the reasons also include more subjective maters such as: not wanting to disturb children; being a 'difficult' person to live with; or a simple preference for having their 'own space'?

Under either interpretation, the definition of spouse does now seem to be broader. This decision is an important reminder to monitor your legal status, and to take steps as may be necessary to re-affirm your intentions when the law changes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Geoffrey W. White
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