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Family Law

Common-Law Relationship in BC: When Does a Girlfriend or Boyfriend Become a Spouse?

Whether you are in a common-law relationship in BC depends on many factors. We have previously discussed the criteria for determining whether a common-law relationship in BC is “marriage-like” and the important implications that flow from such a determination with respect to entitlement to spousal support on breakdown of the relationship. The law in BC treats married couples the same as common-law spouses, as the relationship is “marriage-like” as defined in the legislation. The issue of whether a relationship between two adults is “marriage-like” is complicated by different views as to what constitutes marriage, by the variety of relationships between cohabiting adults, and by the variety of reasons for which adults choose to live together (or to not live together). The latter issue is the focus of this article.

University-aged couples: Are you in a common-law relationship in BC?

When does a girlfriend become a “spouse” in the course of a lengthy relationship that involves living together during some university school years, while living apart during another and the summers? In light of the new social reality of young people who must each prepare for a viable, meaningful career, the question of when a couple becomes committed common-law spouses is not an easy one to answer. In Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 238 (S.C.C.), the Court of Appeal analyzed the requirements of a common-law relationship in BC. While the case involved unique facts and a somewhat unusual claim, the principles established by the court have broad application.

Were the couple in Takacs in a common-law relationship in BC?

John Takacs died at the age of 25 as a result of a motor vehicle accident on December 13, 1992. Following his death, his girlfriend, Melina Boucher, brought a claim under the Family Compensation Act for compensation from the driver who caused John’s death. John and Melina had lived in different cities for the majority of their four-year relationship as each was pursuing a university education. The trial judge determined that they were irrevocably committed to a permanent relationship that would have resulted in marriage had John not died. Given that finding, the trial judge held that the girlfriend was a spouse within the meaning of the Act and thus entitled to damages. The majority of the Court of Appeal overturned the trial judge’s decision, finding that the girlfriend was not a spouse within the meaning of the legislation and as such not entitled to compensation.

Legislation defines who is a “spouse” in BC

The narrow question for the Court of Appeal was whether the relationship John and Melina established in 1988 and continued until John’s death in 1992 was sufficiently like marriage as to constitute “living together as husband and wife”. Note that the Family Compensation Act has since been modernized to remove gendered language; under the current Act a “spouse” means a person who (a) was married to the deceased at the time of death, or (b) lived with the deceased in a marriage-like relationship, for a period of at least two years ending no earlier than one year before the death. The definition is similar to the definitions of “spouse” contained in the Family Law Act, [SBC 2011], c. 25  and in the Wills, Estates and Succession Act, SBC 2009, c. 13. Our estate lawyers recently discussed whether a common-law spouse in BC inherits if their partner dies without a will. <add link to BC Estate Law: Does Common-Law Spouse Inherit If Partner Dies Without a Will? – E. (L.) v. J. (D.), 2011 BCSC 671>

Future plans weighed against current realities

The Court of Appeal held that it was an error to find that John and Melina met the requirements of the Act. Except for the academic year beginning September 1990 and ending in May 1991, they lived apart, even when in the same city. They spent their summer holidays in different towns, and travelled separately. All of this evidence was consistent with the type of relationship many couples have while attending school and considering marriage eventually. They may discuss their future lives together, but one can surely have such discussions and make such “plans” without their becoming a reality. In many cases, marriage (whether formal or common-law) follows; in many, it does not (at para. 57).

 The Court of Appeal held that the trial judge fell into error in giving undue emphasis to the “future plans” of John and Melina as contrasted with the realities of their respective situations whilst attending university. This was a time when both were leading busy and largely independent lives, and they had not yet formed the subjective intention or manifested the objective indicators that could support a finding that they had begun to live as spouses as required by the Act.

Are you in a common-law relationship in BC? The take home points

The take home point from Takacs v. Gallo on the issue of common-law relationships in BC has to do with subjective intention versus objective evidence. The intentions of the couple, particularly whether they saw the relationship as being “of a lengthy, indeterminate duration”, will be important to the determination of whether their relationship was marriage-like. However, evidence of their intentions must be weighed against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship. Subjective intentions may be overtaken by conduct. Conversely, people may live together continuously and interdependently and yet fail to establish that they developed “the kind of psychological and emotional union” associated with marriage. In all cases, the relationship must be considered as a whole in order to determine whether the parties were in a common-law relationship in BC.