Over the last number of decades, families and relationships have become increasingly more complicated, often making estate matters more complex and litigious. For example, when a person claims to be the spouse of a deceased, and the family, or other beneficiaries, either do not recognize them as a spouse or were not aware of a relationship at all, frequently litigation will be the result. Litigation will often take the form of a wills variation claim by the person alleging to be a spouse.
Under s.60 of the Wills, Estates and Succession Act (WESA), children and spouses of the deceased can bring a claim for variation if proper maintenance and adequate provision was not made for them in the will of a deceased. The first hurdle for these parties is to establish themselves as a “spouse”, entitling them to make such a claim. Under WESA, and the former Wills Variation Act, a spouse is defined as someone who was married to the deceased or had been living with the deceased in a “marriage-like relationship” and lived in that relationship for at least 2 years. How the law determines what is “marriage-like” therefore becomes quite important.
On November 30, 2015 the BC Court of Appeal released their decision in Weber v. Leclerc[i]. The Court considered the factors that define a “marriage-like” relationship to determine a spouse under the Family Law Act. This Act uses the same definition as WESA and so the discussion is relevant to circumstances that fall under either Act.
The Court came to the conclusion that, despite separate finances and the female partner’s disavowal of any intention to be a spouse, the couple lived and acted as if they were in a marriage. Even though the couple kept their finances separate and money loaned to one spouse was always repaid, the Court found that keeping finances separate was not in itself indicative of something other than a spousal relationship. The Court then considered arguments regarding the intentions of the parties but ultimately found that the quality of the relationship was much more indicative of a spousal relationship than the statements made by the parties regarding their subjective intentions. The couple cohabitated for a number of years, were in a romantic relationship and the intention, though not to marry, appeared to be to remain together for an indefinite amount of time. Socially, they acted as a couple and raised their children in a family unit with family photographs displayed in the home. All these factors led the Court to conclude that the parties were in a marriage-like relationship, regardless of the alleged intentions otherwise.
The importance of this decision is how the Court of Appeal evaluates a relationship when questioning whether one is a spouse or not. The Court reaffirms decisions from the late 90s and early 2000s that started shifting away from a traditional understanding of marriage. Factors that used to be highly indicative of marriage-like relationships, like joint finances, may no longer play such a pronounced role. Relationships have changed and a formulaic approach is no longer practicable. Moving forward, the Courts will continue to rely upon the individual facts of each case as families continue to become more and more unique.
Mark Weintraub with assistance from Elina Hartshorne, Articled Student
[i] Weber v. Leclerc, 2015 BCCA 492.
