Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
_pods_template
lawyer
acf-field-group
acf-field

As top rated BC marriage like relationship lawyers we know the definition of common law relationships and BC marriage like relationships has evolved over the years. Since spousal support and property division now depend heavily on a determination of whether two spouse were in a BC marriage like relationship, also called a common law marriage relationship, we are very interested in the latest BC Court of Appeal case interpreting and defining just what a BC marriage like relationship is for purposes of our new family law Act. Since this new case will guide future trial judges if you are involved in a BC marriage like relationship it is something you need to be aware of as thousands and perhaps even millions of dollars may turn on whether you meet the definition of a BC marriage like relationship. Lorne MacLean, QC leads our marriage like relationship family law team and he can provide guidance if you are entering or leaving a BC marriage like relationship. Call him and BC’s largest group of BC marriage like relationship family lawyers today toll free at 1-877-602-9900. Our offices are located in Fort St John, Kelowna, Surrey and Vancouver.

Danger Alert!

Living together two years in a BC marriage like relationship means the property division rules of the BC Family Law Act apply to you. BC spousal support can be payable inside of this two year limit if a child is born of the marriage like relationship!

Lorne MacLean QC, BC marriage like relationship lawyer
Lorne MacLean QC, BC marriage like relationship lawyer

In the BC marriage like relationship dispute of Weber v. Leclerc, 2015 BCCA 492 “the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed.”

The court looks at a number of factors and the intentions of the parties to see if they were really in a BC marriage like relationship. In the latest case on just what BC marriage like relationship is the court reviewed their past decisions and noted that no one factor is determinative but that a host of factors must be considered as follows:

[7]             The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264; Takacs v. Gallo (1998), 157 D.L.R. (4th) 623; and Austin v. Goerz, 2007 BCCA 586. It is noteworthy that the cases span a considerable period of time – a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved.

 

17]         While the majority in Takacs endorsed the idea that the parties’ intentions are important in determining whether they live in a “marriage-like relationship”, it clarified two important points. First, while Gostlin had suggested that economic dependence is a key element of a marriage-like relationship, the majority in Takacs explicitly recognized that the intention to live in a marriage-like relationship need not include an intention to be financially interdependent. Second, Takacs holds that the intention that is critical is not the intention to be bound by a statutory regime of mutual support, but rather the intention to enter into a relationship similar to marriage. In the context of Takacs, the court saw the issue as one of whether the parties’ intentions in cohabiting were similar to those that might be expected in a relationship of marriage. The key question was whether the couple saw their relationship as one of indeterminate, lengthy duration.

 

[21]         With respect to the question of whether financial dependence or interdependence was a requirement of a marriage-like relationship, Frankel J.A., speaking for the Court, said:

[55]      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.

[56]      Mrs. Austin relies on Gostlin v. Kergin … and Takacs v. Gallo …. While the need to examine the financial relationship between the parties is discussed in both, in neither do I find support for the proposition that a marital-equivalent relationship cannot exist absent some level of financial dependence.

[57]      Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. F. 3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:

[59]      Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

[Emphasis added by Frankel J.A.]

[58]      It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:

[10]      Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Emphasis added by Frankel J.A.]

[22]         Austin establishes that the question of whether a cohabiting couple are in a “marriage-like relationship” is a question of mixed fact and law that requires a broad approach:

[62]      The chambers judge properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”  She had regard to all aspects of their relationship, including that there was minimal sharing of expenses and no commingling of assets. Based on the evidence it was open to the chambers judge to reach the conclusion she did and there is no basis on which this Court can interfere: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 22.

[23]         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 will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]         The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

Our BC marriage like relationship lawyers suggest you meet with us before you enter into a marriage like relationship to see if a cohabitation agreement makes sense to define the rights and obligations that flow from it.

Final Warning!

Living together two years in a Lorne MacLean QC, BC marriage like relationship lawyer means property division rules of the Family Law Act apply to you. Spousal support can be payable inside of this two year limit if a child is born of the marriage like relationship!