P.P.W. v. R.S.L.B., 2010 BCSC 58 – 2010/01/15
Is an interesting BC unmarried couples, BC common law and BC marriage like relationship case where the BC Supreme Court had to determine if unmarried parties lived in a marriage like relationship” for a period of two years sufficient to justify entitlement to a spousal support award. The court viewed the evidence of separate residences, some overnights together, sexual exclusivity, vacations together, no joint bank accounts although there were financial benefits provided tithe Plaintiff as well as the dysfunctional relationship and held while the alleged wife wanted there to be a marriage like relationship the Defendant alleged husband did not and the Court dismissed the alleged wife’s claim for support and property division under trust law. The Court reviewed the key cases on what needs to be proven to succeed on a common law support claim.
96] The FRA also provides the definition for spouse:
“spouse” means a person who
(a) is married to another person,
(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,
(c) applies for an order under this Act within 2 years of the making of an order
(i) for dissolution of the person’s marriage,
(ii) for judicial separation, or
(iii) declaring the person’s marriage to be null and void, or
(d) is a former spouse for the purpose of proceedings to enforce or vary an order.
[97] The law concerning the definition of spouse under the FRA is quite settled, with Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.), remaining the authority on the matter. The focus of the analysis is on the parties’ subjective intentions to live in a marriage-like relationship, looking to objective factors to assist in this determination. Absent clear evidence of the intention of the parties, no one objective factor is determinative. For the most part, each case is factually unique, and therefore must be judged on its own circumstances.
[98] In Gostlin v. Kergin, the Court of Appeal stated at 267 that upon marriage, individuals assume the support obligations contained in the FRA, and that absent marriage, these obligations should not be thrust upon individuals unless they live together for at least two years as husband and wife in a marriage-like relationship.
[99] Lambert J.A. stated at 269 that when it comes to determining whether an individual is entitled to spousal support under the FRA, it is an all-or-nothing examination:
If the relationship had the characteristics of a true marriage throughout the period of at least two years that is required by the definition of “spouse”, then the parties lived together as husband and wife and there is an entitlement to claim maintenance or support. If the relationship did not have those characteristics, there is no entitlement. And there is no middle ground where the relationship has only some of the characteristics of a true marriage with the result that there is a diminished entitlement. [Emphasis added.]
[100] Takacs v. Gallo, [1998] 9 W.W.R. 235 (B.C.C.A.), provides useful direction to a court in determining if a common-law relationship exists between the parties. Newbury J.A., for the majority, states at para. 53:
The starting point in this province for the analysis required in cases of this kind is the judgment of this court in Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264, and in particular, the comments of Lambert J.A. at 267-8 which are quoted in Madam Justice Huddart’s judgment. I read those comments as focusing first on the intentions of the parties to live “as husband and wife”, or in a marriage-like relationship. Such an intention may or may not include financial dependence. The various “objective indicators” referred to in Gostlin were advanced as a means of divining those subjective intentions where the latter “prove elusive”. By the same token, of course, subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such. [Emphasis added.]
And continued at para 55:
In both Gostlin and Fitton, the question of whether persons were living together as spouses notwithstanding that they were not legally married involved the court in an examination of their intentions and not simply an objective assessment of whether their financial and living arrangements were “intertwined”. If the Legislature had intended the latter, it would have been an easy matter to so state. Objective factors will of course be relevant to determine the parties’ intentions as Lambert J.A. noted in Gostlin but those factors will rarely be determinative in and of themselves. Many combinations of people may live together and meet many of the criteria set forth in Molodowich v. Penttinen (1980) 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), but without intending or in fact entering the kind of psychological and emotional union that one associates with marriage. [Emphasis added.]
[101] Thompson v. Floyd, 2001 BCCA 78, is often cited for confirming that despite the change in the wording of the definition of spouse under the FRA, the Gostlin inquiry remains the authority and that other cases are helpful in determining whether a spousal relationship exists, but each case must be judged on its own facts.
[102] This is the legal framework often employed in determining the existence or not of a common-law relationship under the FRA.
[103] In order to establish an entitlement, the plaintiff must prove that she and the defendant lived together in a marriage-like relationship for a period of at least two years prior to the commencement of her claim.
We recommend you contact us immediately if you are considering entering into a marriage like relatiuonship or are in one that is breaking down as there is a1 year time limit to apply for relief.
