In a recent decision, the British Columbia Supreme Court grappled with an estate dispute where a deceased was survived by two spouses. This unique decision, involving a deceased who was the victim of homicide, gave the Court an opportunity to consider whether the Wills, Estate and Succession Act [WESA] gave both spouses legal status in respect of the Estate, and whether doing so would “condone polygamy”.
The Deceased’s Double Life
In Boughton v. Widner Estate, 2021 BCSC 325, the Deceased left what Justice Duncan described as “a complicated legacy”.[1] He was survived by Sabrina, to whom he had been married, and by Sara, with whom it was acknowledged that he had been in a marriage-like relationship of at least two years.
By his death in 2017, the Deceased had been in a relationship with Sabrina for 17 years, and in a relationship with Sara for 8 years. He had two children with each of Sabrina and Sara.
Sara knew about Sabrina. However, she believed the Deceased’s statements that he would eventually obtain a divorce and marry her. When the couple began their relationship in 2009, the Deceased had said he was finalizing his divorce from Sabrina, and wished to be a good father to his children. He also said that he had property listed for sale, and when it sold, they would be able to buy a home together and move on. “This”, the judge noted, “was the same story he told her for eight years, from the start of his relationship to his untimely death.”[2] He had bought a ring for Sara in 2011, and her evidence was that “they planned to be together forever”.[3]
Sabrina, on the other hand, “had no knowledge of her husband’s relationship with [Sara] and was not separated from him at the time of his passing”.[4] They had begun living together in 2000, and gotten engaged in 2005, shortly after the birth of their first child. They married in 2008. Although Sabrina had raised the subject of the divorce with the Deceased in 2014, her evidence that he was extremely upset by this prospect, and that their relationship improved thereafter.
The judge described how the Deceased was able to lead a double life for many years as follows:
[7] The Deceased was able to maintain two separate households because he told [Sabrina] he was working part of the week on the other side of Vancouver Island from [their] household, when he was actually spending time with [Sara]. The Deceased kept up a regular schedule, alternating between the two households.
The Deceased Criminal Life?
During his lifetime, the judge described the Deceased as having worked in “various enterprises” and noted that he “appears to have been paid in cash”.[5] In fact, following his death, it was discovered that the Deceased had been involved in the illegal sale of marijuana and had been involved with the Hells Angels. In 2017, he was reported missing. His body was located within a few days.
His murder remains unsolved.
Remedies for Sara, as Spouse #2
Following the death of the Deceased, Sara applied for Orders from the Court. She sought, in part, a declaration that she was a spouse of the Deceased and declarations regarding the assets making up the Estate of the Deceased, including based on resulting trust and unjust enrichment relating to assets held by Sabrina alone.
Sabrina opposed Sara’s lawsuit. In doing so, she relied in part on the financial arrangements between her and her husband, and in part on what she said were the implications of Sara’s claim:
[15] [Sabrina] also takes the position that the WESA does not give [Sara] any legal status as a spouse vis-à-vis the Deceased’s estate, because to do so would condone polygamy. Depending on the outcome of this trial, [Sabrina] intends to challenge the validity of the spousal provisions of the WESA to the extent that they conflict with the criminal law proscribing polygamy.
Multiple Spouses?
Justice Duncan began her analysis of this argument by setting out the relevant part of the WESA:
[169] The WESA states in Part 2 “Fundamental Rules”, Division 1 “Meaning of Spouse, Effect of Adoption and Construction of Instruments”:
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
- they were married to each other, or
- they had lived with each other in a marriage-like relationship for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
- in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or
- in the case of a marriage-like relationship, one or both persons terminate the relationship.
(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
- they begin to live together again and the primary purpose for doing so is to reconcile, and
- they continue to live together for one or more periods, totalling at least 90 days.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
[Emphasis added by Justice Duncan.]
The judge also went on to note that where someone dies without a will in BC, the WESA expressly contemplates a situation where they are survived by two or more spouses. Section 22 provides as follows:
Two or more spouses
22 (1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.
(2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.
Multiple Concurrent Spouses?
Here, the question facing the Court was whether the WESA “provides for the division of an estate as between two individuals who were in concurrent, subsisting spousal relationships with the Deceased at the time of death” (emphasis in original).[6] Sara contended that the WESA clearly provided for circumstances such as these, where there are two individuals who qualify as spouses on the death of a deceased. Sabrina, however, said that “to permit such an interpretation … would be to sanction polygamy”.[7]
Justice Duncan held that the Legislature intended to provide for exactly these circumstances. In doing so, at para. 179, the judge reproduced the entirety of the debates by the British Columbia Members of the Legislative Assembly in 2009. These debates reveal that s. 22 was intended to capture the situation, however unlikely it may be, where two spousal relationships exist at the same time, perhaps unknowingly. It was therefore the “considered intention of the Legislature to continue to provide for individuals in a marriage-like relationship with an individual who was still married to someone else at the time of death”.[8]
The judge then set out her reasons for rejecting Sabrina’s polygamy argument:
[182] Counsel for [Sabrina] maintains that this cannot be the case, as it sanctions polygamy, in direct contravention of provisions of the Criminal Code. In Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, Bauman CJSC (as he then was) determined that the criminal law prohibits any kind of conjugal union with more than one person at the same time – multiple marriages. The section does not extend to conjugal relationships, common law cohabitation, or what in law we now define as “marriage-like relationships”. The prohibition also does not extend to adultery: at paras. 984 – 1020. [Emphasis added by Justice Duncan.]
In the result, Sara was entitled to a declaration that she was a spouse of the Deceased, as defined in WESA.
Unjustly Enriched by Criminal Proceeds
The judge went on to determine the value of the Deceased’s Estate. This required her to consider whether and to what extent the Deceased had contributed to Sabrina’s assets, including through the illegal sale of marijuana.
Justice Duncan reviewed the evidence regarding payment for the real estate that remained in Sabrina’s name, and found that the Deceased had contributed $150,000:
[167] With all due respect to [Sabrina]’s financial acumen, it was not possible for her to save far more than she was earning in order to retire the original Tugwell mortgage. The only conclusion on the evidence is that the Deceased was providing her with the money to do so. Given his tax filings, inconsistent employment, cash contributions to the household and aversion to paper trails concerning his finances, I find his income was from illegal sources. [Sabrina] either knew or ought to have known this.
Sara said that this $150,000 ought to be awarded to the Deceased’s Estate, as Sabrina had been unjustly enriched by his contributions. In deciding this claim, Justice Duncan observed that “illegality is not necessarily a bar to recovery via unjust enrichment”.[9] She allowed the claim, and held that the Deceased’s Estate was entitled to $150,000, plus interest. Pursuant to s. 22 of WESA, this amount was to be divided equally between the two surviving spouses, Sabrina and Sara.
Validity of the Spousal Provisions
In closing, Justice Duncan noted that Sabrina’s challenge to the validity of the spousal provisions in WESA was outstanding and remains to be scheduled, in consultation with the Attorney General of British Columbia.
Boughton v. Widner Estate afforded the Court the opportunity to consider the legal rights and remedies arising from a unique (though likely not singular) set of facts. In this case, not all parties knew of one another. Justice Duncan noted that after learning of the Deceased’s relationship with Sara after his death, Sabrina “understandably resent[ed] her husband’s duplicity”.[10] Further, the legislative debates excerpted in the decision describe a situation caught by s. 22 of the WESA as “distasteful or tawdry”.[11]
However, it must be recognized that society, and the Courts, are becoming more inclusive and accepting of diverse forms of relationships. Individuals may choose to enter into and maintain spousal relationships with more than one person, or with someone who already has one or more spouse(s), with the knowledge and consent of all parties. As observed by Justice Kent in Connor Estate, 2017 BCSC 978 at para. 53, “Like human beings themselves, marriage-like relationships can come in many and various shapes.” As social attitudes and societal norms evolve, diverse relationships ought not be considered “distasteful or tawdry”, and are entitled to respect and legal protection.
Boughton shows that regardless of whether all parties consent and are aware of the spousal relationships, and barring Sabrina’s challenge of the WESA provisions in issue, all surviving spouses have rights and remedies on their spouse’s death. In this case, the Deceased chose to create obligations in respect of two families, and the Legislature protected Sara’s right to enforce those obligations under the WESA.
For assistance with any estate planning or litigation inquiries, please contact Polly Storey or another member of our Estates and Trusts Practice Group.
