By Lauren Liang

Under British Columbia succession law, the spouse of a deceased would inherit a substantial portion, if not all of the estate, if the deceased died without leaving a will. If the deceased did leave a will, then the spouse would have standing to seek a variation of the will if it failed to make adequate provision for the spouse.

Given the significant entitlement of a spouse in intestacy, and the wills variation remedy available to a spouse, spousal status is often disputed in estate litigation.

What Constitutes a “Marriage-Like” Relationship?

Section 2 of the Wills, Estates and Succession Act (“WESA”) provides that two persons are spouses if they were married to each other or they had lived with each other in a marriage-like relationship. Once two persons became spouses of each other per the above provision, they do not remain as spouses indefinitely. Section 2 of WESA specifically provides for the termination of a spousal relationship. For instance, in the case of a marriage-like relationship, if one or both parties terminate the relationship, then the spousal relationship ends.

The vast majority of the disputes arise when the parties were not legally married but were allegedly in a “marriage-like” relationship. But, what is a “marriage-like” relationship? Simply put, a marriage-like relationship is a relationship akin to a marriage without the formality of a marriage.

How Do the Courts Evaluate “Marriage-Like” Relationships?

The decision of the BC Supreme Court in Mother 1 v. Solus Trust Company, 2019 BCSC 200 illustrates the complication of the issue and the factual emphasis in the determination of the issue.

In this case, Gang Yuan (“Mr. Yuan”) died as a victim of a crime in 2015. He died without leaving a will and had an estate valued between $7 million to $21 million. Mr. Yuan is survived by his five children from five different women, none of whom he had married. In fact, he spent time with each of these five women in addition to several others, and there was overlap amongst these various relationships. During Mr. Yuan’s lifetime, he provided the five mothers of his children with various levels of financial support and/or expensive gifts.

Mother 1, the mother of the eldest child of Mr. Yuan, sought a declaration from the court that she was Mr. Yuan’s spouse. If Mother 1 were ruled to be Mr. Yuan’s spouse, then she would be entitled to a “preferential share” (in this case, the amount would be $150,000) plus half of the estate, and the five children would then share the remaining half of the estate. In the absence of a spousal claim, the five children would instead share the entire estate amongst themselves.

Upon hearing evidence from all five mothers, in addition to relatives and employees of Mr. Yuan, the trial judge concluded that Mr. Yuan and Mother 1 were never in a marriage-like relationship, or alternatively, if their relationship had been marriage-like within the meaning of WESA, then it was terminated by Mr. Yuan either in 2011 or in 2014.

The trial judge specifically commented that the issue was not a contest between Mother 1 and the other four mothers. However Mr. Yuan’s relationships with each of the other mothers, in addition to his involvement with additional women, were significant factors in evaluating the nature of the relationship between Mr. Yuan and Mother 1 as they, in part, showed his attitude towards his relationship to Mother 1.

The trial judge also conducted a comprehensive review of the jurisprudence and case law on “marriage-like” relationships, both in the family law context as well as the estate law framework.

The highlights of this review are summarized below:

• it is possible for a person to leave behind two or more persons who might qualify as “spouse” under WESA;
• the concept of a marriage-like relationship is elastic because spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. For instance, in some relationships, there is a complete blending of finances, while in others, spouses keep their property and finances separate. For some couples, sexual relations are very important, but for others, companionship matters more. Some people are affectionate and demonstrative of their relationship, while others do not engage in public displays of affection, etc.;
• there may be a list of factors that may be taken into account in determining a marriage-like relationship; however, the court should caution against a “checklist” approach. Rather, the court should “holistically” examine all the relevant factors;
• legal capacity to marry is not a prerequisite to being in a marriage-like relationship; and
• intention of the parties is a factor that must be considered; however, one party’s denial of 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”.

Mother 1 appealed the BC Supreme Court decision in Mother 1. Solus Trust Company Limited, 2021 BCCA 461. The BC Court of Appeal upheld the trial judge’s conclusion and dismissed the appeal. The Court of Appeal clarified that the requisite two years of a marriage-like relationship need not immediately precede the death of one of the parties, but the parties must remain spouses at the time of the death in order to advance a spousal claim. In other words, the spousal relationship must not have been terminated at the time of the death.

In Closing

As this case illustrates, the issue of spousal status can be quite complicated and fact-specific and the determination of a person’s spousal status has a significant impact on the distribution of an estate.

If you are an executor of an estate that faces a potential spousal claim, or if you are the person who has a potential claim as a spouse, you should consider seeking legal advice.