Will a Separate Residence Affect Your Spousal Status?


Those who have read Amy Mortimore’s earlier blog on spousal status may recall that spousal status is a “threshold question” in most estate litigation because being recognized as a “spouse” typically allows the person a claim or sometimes a greater claim on the estate.

Under WESA, a person is considered to be a spouse if the person was married to the deceased at the time of the death or if the person had lived with the deceased in a “marriage-like relationship” for at least 2 years at the time of the death.

The BC Supreme Court recently released its first decision under WESA with respect to the determination of a “marriage-like relationship”. In Re Richardson Estate, 2014 BCSC 2162, Philip Richardson (the “Deceased”) died leaving no will. Nancy Chen applied for a declaration that she was the Deceased’s spouse and the sole beneficiary of his estate pursuant to the intestacy rules under WESA. The Deceased’s brother, Stephen Richardson, disputed that Nancy lived in a “marriage-like relationship” with the Deceased.

The parties agreed that Nancy and the Deceased had a loving and intimate relationship for 15 years. However, other aspects of the relationship were in dispute, in particular, the fact that it involved two residences, one in Surrey and one on Gambier Island.  Nancy worked in Surrey and owned a home in Surrey, and the Deceased worked on Gambier Island and owned a home there.

In determining the case, the Court confirmed the approach taken by courts in the pre-WESA era. The Court confirmed that there are many indicators to be considered when determining a “marriage-like relationship”, and those indicators may be present in varying degrees and not all are necessary for the relationship to be found “marriage-like”.

The Court eventually ruled that Nancy was in a “marriage-like relationship” with the Deceased and therefore was a spouse of the Deceased. That decision was based on, among other evidence, the following:

  • The parties had a ceremony like a traditional Chinese wedding when they traveled to China;
  • Nancy cared for the Deceased’s elderly parents and his mother gave Nancy the wedding ring from her marriage;
  • The Deceased cared for Nancy during a significant health incident in 2011;
  • Nancy cooked and cleaned for the Deceased, and the Deceased made Nancy furniture;
  • They traveled together on a number of trips;
  • The Deceased contributed to the costs of raising Nancy’s sons, including school costs;
  • The Deceased named her as the beneficiary for his investment account and Nancy did the same for her investment account;
  • The Deceased and Nancy were known as a couple on Gambier Island;
  • The Deceased and Nancy traveled back and forth between Gambier Island and Surrey, with Nancy being more often on Gambier Island; and
  • The parties had an exclusive and intimate relationship in both locations and each contributed to the two residences.

With respect to the issue of two residences, the Court concluded that the couple structured their relationship so that they could work in two locations and look after their respective families in those locations.

The Court also noted that there were some minor issues (such as tax returns, on which the Deceased reported as “divorced”) that are inconsistent with a marriage-like relationship but overall the evidence supports the conclusion that Nancy and the Deceased had a marriage-like relationship.