Canadian courts espouse different tests for recognizing spouses: An update

Comply With Insurance Statutory Requirements

In a recent article on our Estates & Trusts Blog, we considered what constitutes a spousal relationship under section 2 of B.C.’s Wills Estate and Succession Act, SBC 2009, c 13 (“WESA”).  According to WESA, an individual is deemed to be a spouse if the individual and the deceased were either married to each other, or lived with each other in a marriage-like relationship for at least two years.

In the article, we also canvassed recent Canadian jurisprudence, which interpreted section 2 of WESA, paying specific attention to Re Connor, 2017 BCSC 978 [Re Connor].  Finally, we came to the conclusion that Re Connor represents a high-water mark decision when determining what constitutes a marriage-like relationship, by virtue of the court’s broad interpretation of WESA in that caseSince Re Connor’s release, two British Columbia decisions have espoused a more narrow interpretation of what constitutes a marriage-like relationship, suggesting that Re Connor is, in fact, a high-water mark decision

By way of background, Re Connor involved a deceased (“Patty”), who was in a relationship with a married man (“Joe”).  Patty and Joe had dated for 24 years; however, the two lived in separate domiciles, did not have joint bank accounts, and undertook their own separate domestic tasks.  Nevertheless, after Patty passed away, Joe sought a declaration that he was Patty’s spouse pursuant to WESA.  Even though Joe was married to another person, and lived in a separate residence from Patty, the B.C. Supreme Court found that Joe and Patty were spouses under WESA. 

The recent B.C. decision of Robledano v Jacinto, 2018 BCSC 152 [Robledano] seems to have attempted to limit the court’s decision in Re ConnorRobledano involved a claim by Ms. Robledano, who (among other things) sought a declaration that she was in a marriage-like relationship with her deceased partner (Ms. Jacinto).  Fleming J., in Robledano, held that, pursuant to Re Connor,  the fact that two people do not live together “under the same roof” or have joint finances might, without more, militate against a finding of a marriage-like relationship.  Fleming J. then went on to explain why, despite living together only part time, the deceased and her girlfriend were in a marriage-like relationship and were spouses under section 2 of WESA. 

The B.C. Supreme Court also seems to step away from Re Connor in the recent family law decision of Dey v Blackett, 2018 BCSC 244 [Dey].  Dey involved a three-year relationship between Ms. Dey and Mr. Blackett, which ceased in 2015.  Ms. Dey, among other things, claimed that she and Mr. Blackett were spouses under section 3 of the Family Law Act, SBC 2011, c 25 (the “FLA”), entitling her to spousal support and to a portion of Mr. Blackett’s property.

In adjudicating Ms. Dey’s claim, Schultes J. interpreted section 3 of the FLA.  Similar to WESA, section 3 of the FLA requires couples to be married to each other, or to be in a marriage-like relationship for at least 2 years, to be treated as a spouse.  The court found that, while Ms. Dey and Mr. Blackett had lived together for at least 2 years, the couple had not integrated their finances in a manner that would be expected in a marriage-like relationship.  Accordingly, the court dismissed Ms. Dey’s claim, and held that Ms. Dey and Mr. Blackett were live-in partners, but not spouses under the FLA.

Robledano and Dey respectively suggest that living in separate domiciles and maintaining separate finances will weigh against a finding of a spousal relationship, contrary to the court’s decision in Re Connor.  Accordingly, while Re Connor is still good law in B.C., it seems that recent jurisprudence has treated Re Connor as a high-water mark decision, perhaps limited to its own unique set of facts.  This treatment may therefore reduce Re Connor’s applicability in estates cases moving forward.