Two recent cases in the British Columbia courts have clarified different aspects of the question of when a common-law partner is entitled to a spousal interest in the estate of a person who died intestate.

Under the British Columbia Estate Administration Act (the “Act”) the “spouse” of a person who dies without a will is entitled to an interest in the estate. The exact nature of the interest varies depending on whether the deceased had surviving children and, if so, the number of them. The Act defines “spouse” as including “common law spouse”, which in turn includes

a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death.

In the first case, Austin v. Goerz (2007 BCCA 586) the BC Court of Appeal held that neither a lack of legal capacity to marry nor a lack of financial dependence prevented a surviving partner from being considered a spouse for the purposes of the Act.

Mr. Austin was still legally married to his separated wife of 30 years when he began living with Ms. Goerz. They continued to live together for six years until he died in 2006 without a will. Mr. Austin and Ms. Goerz presented themselves in public as a couple throughout this time. However, they maintained separate bank accounts and financial affairs. After Mr. Austin died, his wife asked the Court for a declaration that Ms. Goerz was not a spouse of Mr. Austin. The Court of Appeal upheld the trial judge’s ruling that Ms. Goerz was a common-law spouse for the purposes of the Act, and therefore entitled to share in Mr. Austin’s estate.

The Court of Appeal rejected Mrs. Austin’s argument that Mr. Austin’s lack of capacity to marry Ms. Goerz, due to his ongoing marriage to Mrs. Austin, prevented a common-law marriage from forming. The Court found no requirement of legal capacity to marry in the definition of common-law spouse in the Act. In fact, the Court noted the definition specifically includes persons in a same-gender marriage-like relationship, and at the time this provision was enacted by the legislature, same-sex couples were understood to lack the ability to legally marry.

The Court also rejected the notion that financial dependence is a requirement to be considered a common-law spouse under the Act. The element of financial dependence was a specific requirement in an older version of the Act, but this element was removed in amendments made in 2000. The Court stated:

While financial dependence may at one time have been considered an essential aspect of a marital relationship this is no longer so. Today marriage is viewed as a partnership between equals and there is no principled reason why marital-equivalent relationships should be viewed differently.

A more recent case in the British Columbia Supreme Court, Gosbjorn v. Krompocker Estate (2008 BCSC 219), addressed the effect of a separation on a common-law relationship and the rights of a surviving partner under the Act.

In this case, Mr. Krompocker and Ms. Gosbjorn lived together as a couple for 12 years. Troubles in their relationship developed as a result of Ms. Gosbjorn’s drug use and Mr. Krompocker’s fragile health as a result of an industrial accident. Eventually the couple separated, with Ms. Gosbjorn renting her own place and moving her personal belongings. There was some evidence, however, that the couple held out some hope for a future reconciliation. Tragically, Mr. Krompocker committed suicide just a few days later.

Under the Act, a legally married spouse of a person who dies intestate may have been separated for up to a year prior to the date of death without disentitling the survivor of a share in the deceased’s estate. Ms. Gjosborn argued that the legislation should be read so as to give common-law spouses the same rights. The Court did not agree with this argument, noting that the definition of common-law spouse requires cohabitation for at least two years “immediately before” death.

However, the Court acknowledged that not all separations signal the end of a common-law relationship. Instead,

parties cease to live and cohabit in a marriage-like relationship when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one.

By this reasoning, a couple may still be considered to be “cohabiting” for the purpose of the Act, despite no longer living together. Ending a common-law relationship for the purposes of the Act would now appear to require something more than starting to live separately.

The Court found that the words and actions of Mr. Krompocker and Ms. Gosbjorn in fact showed an intention to continue the relationship. Mr. Krompocker was troubled and clearly wanted a change, but the Court found that the steps he took fell short of demonstrating in a convincing manner that he had a settled intention to end the relationship.

While common law spouses technically have equal rights under the Wills Variation Act (“WVA”), it appears from at least one recent BC case that in practice they are treated differently from legally married spouses.

In Picketts v. Hall Estate, a 2007 decision from the BC Supreme Court, the plaintiff was a 75 year old female who had been in a 21 year common law relationship with the deceased. The estate at issue was large – comprising at least $18 million in liquid cash assets. There was no question that the relationship between the plaintiff and deceased had been a close one. However, while the deceased treated the plaintiff as his “wife”, it appeared that he had made a conscious decision not to legally marry her – a fact that the plaintiff was “acutely aware of” but ultimately resigned herself to.

The deceased’s children did not take issue with the plaintiff’s claim that the deceased’s will did not adequately provide for her. The Court agreed, noting that “in the context of an estate valued at at least $18 million, the bequests to the plaintiff [were] uncommonly frugal”. However, the evidence suggested that this was not unusual given the deceased’s determinedly modest lifestyle. While they lived comfortably, the plaintiff and deceased did not share a life characterized by lavish spending and extravagance.

The case provided the Court with a unique opportunity to consider the application of the WVA where the estate could provide much more than “adequate provision for the proper maintenance and support of the testator’s spouse”. The Court accepted that at a certain point, the size of a wealthy estate was irrelevant to the question of what is “adequate provision”.

Under the usual WVA analysis, the Court considered the deceased’s moral and legal obligations to the plaintiff. The deceased’s legal obligations were held to be akin to that which the plaintiff would be entitled if the relationship had ended during the deceased’s lifetime – which in the context of a common law relationship would be limited to spousal support under the Family Relations Act (any common law claims in constructive trust or unjust enrichment being subsumed into the moral obligations). The applicable moral obligations were more difficult to define. The Court flatly rejected the plaintiff’s submission that she was entitled to a substantial share of the capital of the deceased’s estate (in the range of $9-$10 million). Rather, the Court concluded that the deceased’s moral duty to the plaintiff was satisfied by the plaintiff being “secured in the enjoyment of the standard of living she enjoyed while [the deceased] was alive; a regime in which she need not worry about her financial position for the rest of her life”. The plaintiff was ultimately awarded $175,000 per year until her death and a lump sum payment of $405,000 (for home renovations), in addition to the establishment of a wasting fund for the plaintiff’s health care needs.

The decision of the BC Supreme Court is currently under appeal and it will be interesting to see whether the Court of Appeal agrees with the trial judge’s approach. If so, the law in British Columbia will have developed in such a way as to create a distinct inequality between the rights of legally married spouses and common law spouses in the context of the WVA.

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