According to inheritance laws in BC, a common law spouse automatically has a right to share in the estate if their partner dies without a will. When do romantic partners become common law spouses? A couple can be in a long-term relationship but not cohabiting. They may be living together, but not in a “marriage‑like relationship.” How to characterize a relationship between two people at a given time is not always capable of precision, but that is exactly what the courts are called on to do from time to time in estate litigation.
A lot turns on the characterization of a relationship when a partner dies without a will. The estate claim in Jones v. Davidson, 2020 BCSC 1371, is a stark example of this. In the Jones case, the surviving partner of the deceased was unable to demonstrate to the court that she was in a marriage-like relationship early enough to qualify as a common law spouse. The result was that she was not entitled to an automatic inheritance as a spouse under the rules of intestacy. Instead, the deceased’s estranged only son would inherit his estate under the intestate rules. More recently, the surviving partner appealed (indexed as Jones v. Davidson, 2022 BCCA 31 (https://www.bccourts.ca/jdb-txt/ca/22/00/2022BCCA0031.htm). She argued that the trial judge failed to consider the entire picture of her relationship with the deceased through a modern lens. The BC Court of Appeal found no error in the trial judge’s conclusion and dismissed her appeal. She was in a caring, supportive relationship when her partner unexpectedly died, but she was not in a marriage-like relationship on or before the critical date.
For the purposes of an intestacy claim, a “common law spouse” is defined as a person who has lived with another person in a marriage-like relationship for a period of at least 2 years immediately before the other person’s death.
Larry Jones died intestate on March 18, 2014. At the time of his death, he was residing with Tracey Davidson and her young daughter in his home in Terrace, BC. Larry and Tracey were not married. After Larry’s death, Tracey obtained a grant of letters of administration in respect of his estate. In applying for the grant, Tracey swore a statutory declaration stating that she was Larry’s common law spouse within the meaning of the Estate Administration Act, R.S.B.C. 1996, c. 122, the law in place at the time of his death. Larry’s estranged son, Eric Jones, contested the grant of letters of administration. He agreed that his father and Tracey were in a common law relationship when his father died, but said that the relationship was not of sufficient duration to qualify Tracey as a common law spouse as defined in BC estate law. Because Larry died on March 18, 2014, Tracey had to establish that she was Larry’s common law spouse on or prior to March 18, 2012.
After a seven‑day trial, Mr. Justice Mayer determined that Tracey had not met the onus of establishing that she was Larry’s common law spouse for the purposes of the Act. The trial judge found that Larry and Tracey were in a romantic relationship starting in February 2012, but did not have a marriage‑like relationship until April 30, 2013 when Tracey and her daughter moved from their home in North Vancouver into Terry’s home in Terrace, BC. Starting in February 2012, to the world at large Tracey and Larry had become “boyfriend and girlfriend” but they were not acting as a committed couple at that time. The trial judge found that they did not comport themselves in this manner until after April 2013 when the following events occurred:
a) In May 2013 when Tracey’s daughter registered for school in Terrace and Larry was listed as her stepfather on her registration documents;
b) In October 2013 when Larry revised his Desjardin’s health and life insurance coverages at work to include Tracey as his common law spouse and Tracey and her daughter as his dependants; and
c) In or about early 2014 when Tracey recorded her marital status on her 2013 income tax return as “common law”.
On appeal, Tracey argued that the trial judge should have given less weight to what she put on her tax return (she said she claimed single status in previous years to get child tax benefits), and more weight to some of her other evidence, for example: cash gifts Larry provided to Tracey to help her with her schooling before they moved in together; the increase in how often Tracey and Larry texted and talked in the last months of 2011 and early 2012 (which she said showed how close they were becoming); and the fact that Larry referred to her as his “live-in lady” in conversation with his friend in the summer of 2012.
There is no doubt that the court will consider factors such as shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. These are helpful indicators of the sorts of behaviour that society associates with a marital relationship. But, as the courts consistently state, there is no checklist for determining the existence of such a relationship. The characterization of a relationship as marriage‑like is contextual. 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.” While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it must also test that evidence by considering whether the objective evidence is consonant with those subjective intentions.
In Jones,none of the indicators provided strong support for Tracey’s contention, and the accumulation of factors as a whole simply did not build a picture of a marriage‑like relationship as of March 18, 2012. Instead, the indicia pointed strongly to a developing romantic and caring relationship with expectations developing through the pertinent period, but not, in the Court of Appeal’s view, to the creation, yet, of a relationship that would be recognized as marriage‑like. The reality was that in each of these indicia there was too much space between the parties to cumulatively produce a marriage‑like relationship before the critical March 2012 date.
Whether someone is legally considered a spouse for the purpose of intestate inheritance is a highly fact‑specific determination, requiring consideration of both subjective intent and objective evidence. Spousal relationships are many and varied. The variation in the way human beings structure their relationships can make the determination of whether and when a “spousal relationship” exists difficult to determine. The objective evidence may address a wide assortment of indicators and there is no definitive classification system to determine the ultimate characterization of a relationship as at the critical date. This is a complex area of the law and the requisite two-year period in the definition is strictly interpreted. Reach out to our BC estate litigation lawyers if you need advice about a potential intestate estate claim: https://onyxlaw.ca/contact/
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