On June 13, 2017, the BC Supreme Court issued reasons for judgment in Connor Estate, 2017 BCSC 978.
Patricia Connor passed away on January 29, 2015. Joseph Chambers sought an order declaring him to be her spouse. She had no children. It was not clear if she had a will; if she did then it was lost. If Mr. Chambers were her spouse, then he stood to inherit her estate. Otherwise, her estate would be divided among her half-siblings.
Ms. Connor and Mr. Chambers were never married. In fact, for much of their relationship Mr. Chambers was married to someone else. The case turned on whether Mr. Chambers was a “spouse” within the meaning of section 2 of the Wills, Estates and Succession Act (or WESA for short). To oversimplify a bit, it states that two people are spouses if (a) they were married, or (b) they lived in a marriage-like relationship for at least 2 years.
Whether a relationship is “marriage-like” really depends on the specific facts of any particular case. As Mr. Justice Kent states at paragraph 53 of Connor Estate, “like human beings themselves, marriage-like relationships can come in many and various shapes.” There is a long list of different factors that courts have considered in deciding whether a relationship is “marriage-like” (paragraph 7 of the reasons for judgment); however, it is not a checklist. There are probably few, if any, factors that are specifically required for a “marriage-like” relationship. The factors in the list can be seen as “helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship” (Weber v. Leclerc, 2015 BCCA 492, leave to appeal to SCC refused,  S.C.C.A. No. 19).
Ms. Connor and Mr. Chambers began their relationship in 1993. From 1993 to 2012, Mr. Chambers lived in Mission, with his wife. Nevertheless, Mr. Chambers visited Ms. Connor and spoke or texted her almost every day. Mr. Chambers separated from his wife in 2012, and their family law case concluded March 2015. Mr. Chambers gave evidence that he wanted to move in with Ms. Connor after he had separated from his wife, but Ms. Connor suffered from a condition that caused her to be a “hoarder”.
It was argued that the law did not permit a person to have more than one marriage-like relationship at a time. Mr. Justice Kent summarized the law on that point as follows:
 … It is correct to say that a person who is not legally divorced does not have the legal capacity to enter into a common-law marriage. However, such capacity is not a pre-requisite for the statutorily contemplated “marriage-like relationship” referred to in s. 2(1)(b) of WESA.
Nor is living in the same home a pre-requisite to being in a “marriage-like relationship”. Mr. Justice Kent quotes from Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 at para. 42:
… cohabitation is a constituent element of a common law relationship. “Cohabitation” in this context is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof. Such periods of physical separation … [may] not end the common law relationship if there was a mutual intention to continue. … subject to whatever provision may be made in a statute, a common law relationship ends “when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one”.
It was also argued that the relationship was an “affair” rather than a “marriage-like relationship”, pointing out that there were a number of factors that might suggest they were not in a marriage-like relationship. Those factors are listed at para. 46:
- the parties maintained two entirely separate residences and did not live under the same roof;
- each undertook their own separate domestic tasks such as meal preparation, shopping, tending to clothing and household maintenance;
- no mingling of finances occurred;
- sexual relations between them in their respective households were significantly reduced in the last two years;
- Ms. Connor’s hospital records identified her marital status as single and indicated Mr. Chambers as an alternative contact identifying him as a “friend”;
- Ms. Connor identified herself as “single” on her tax returns and Mr. Chambers identified himself as “separated” after 2012;
- Mr. Chambers identified his wife as his “current spouse” in the spousal declaration for his municipal pension plan application in September 2011, a designation that was never changed;
- in August 2013 Mr. Chambers declared for the purposes of his group benefits with Manulife Financial that he had no common-law spouse and he did not declare Ms. Connor as a beneficiary;
- Mr. Chambers’ children had no involvement in the life of Ms. Connor and indeed the son was never even introduced to her; and
- neither Mr. Chambers nor Ms. Connor displayed photographs of each other in their respective residences.
The problem with this argument is that there is no checklist of factors that need to be found before a marriage-like relationship exists (at para. 47). Rather, the test is whether the evidence as a whole indicates that the parties had a marriage-like relationship, and in this case there was ample uncontroverted evidence on which the Court was able to find that one existed.
- Capacity to marry is not a pre-requisite to a “marriage-like relationship” under s. 2(1)(b) of the WESA.
- Cohabitation is not synonymous with co-residence.
- There are no specific factors that act as a test to see if someone is in a marriage-like relationship. Whether two people are in a marriage-like relationship depends on the specific facts of the case that comes before the court.
Brennan J. Clarkson has helped clients with family law and estate law cases since 2008. He practices in Port Moody, British Columbia at Clarkson Law Corporation.
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