People start relationships throughout various stages of their life; some get married earlier, and other couples come together later in life. Some will have biological children, while others will be step-parents. Some will get married, and others will stay together in a relationship, but one that does not necessarily fit previously held views.
A more frequent area of litigation in recent times has been, when considering whether to challenge a Will or not, if the deceased’s partner/significant other actually qualifies as a spouse or partner under the governing legislation. The governing legislation is the Will Estate and Succession Act, which in section 2 states:
When a person is a spouse under this Act
- 2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
- a) they were married to each other, or
- b) they had lived with each other in a marriage-like relationship for at least 2 years.
- (2) Two persons cease being spouses of each other for the purposes of this Act if,
- a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or
- b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
- (2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
- a) they begin to live together again and the primary purpose for doing so is to reconcile, and
- b) they continue to live together for one or more periods, totalling at least 90 days.
- (1) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
Based on the legislation, if the deceased and spouse/partner were married when the deceased died, it’s pretty clear cut they are entitled to the Estate. However the more nebulous phrase of “marriage-like relationship” is the subject of many challenges. Questions of not living under the same roof, the duration of the relationship, and what it means to be in a marriage-like relationship are complicated when determining what one’s rights are.
In the British Columbia Court of Appeal decision in Coad v. Lariviere, (2022 BCCA 350) was tasked with defining/determining what a “marriage-like” relationship was/is, and as such, what is sufficient for someone to inherit the Estate in these relationships.
The Court of Appeal overturned the lower Court’s much more traditional, formulaic approach to a “marriage-like” relationship which was essentially a checklist-like approach to this concept. (Been together this long, check! Shared these expenses, check), noted “there is no specific definition of whether a marriage-like relationship exists. The precise definitions of the past are no longer valid in our changing world.
Such relationships are no longer defined by financial dependence, sexual relationships or the mingling of property and finances.” This is a recognition that there is a shift away from the view of people getting married young, having kids, and living in the same house until one dies. The reality of the world now, is that people will get married later, or for the second time. They will bring different assets and incomes to the relationship table, and may not even reside with one another for months at a time due to work obligations or other considerations.
So while this more broadly inclusive approach is part of society, it was not defined by the BC Court of Appeal. In the case of Razafsha v. Heidary 2022 BCSC 1357, when faced with the same question (due to a challenge by the deceased family) of whether the parties “were living in a marriage-like relationship as contemplated under WESA.”
For background information, Ms. Jadidian died without a Will, and Ms. Razafsha was opposing Ms. Jadidian’s sister from being granted administration of the Estate. Ms. Jadidian’s sister contends the relationship was never marriage-like or, if it was, it had terminated over 90 days before Ms. Jadidian’s death.”
The Court relied on several 2022 decisions (Coad and Jones) when once again adopting the position that a “marriage-like relationship” is contextual and involves the consideration of what the parties intended and what their relationship looked like to the outside world based on a wide assortment of characteristics or indicia.
In deciding that Ms. Jadidian and Ms. Razafsha were in a marriage-like relationship, the Court used the following evidence:
- a) The evidence of a good friend that Ms. Razafsha introduced Ms. Jadidian as her girlfriend, and that they resided together in several different homes;
- b) Razafsha’s evidence about her relationship with Ms. Jadidian;
- c) The couple’s purchase of the Inverness Property;
- d) The wedding in Cancun; and
- e) The financial documents describing one another as common law spouses.
It would have been fair to simply assume because there was a wedding there was a marriage-like relationship already established. However, the takeaway from that aspect of the decision is the importance of further evidence regarding how a couple presents their relationship to the world. Namely, their financial documents that say they were common law, and the casual conversations they would have with others about their relationship status.
The second issue argued in Court was whether this marriage-like relationship ceased to exist by the time of death. Under s. 2(2)(b) of WESA, an unmarried spouse ceases to be a spouse when one or both persons terminate the relationship. The imprecise and flexible language of WESA requires consideration of both parties’ intentions and the specific circumstances of their relationship over time; how did they think about, and how did they present, their relationship to the world?
In assessing whether the relationship had terminated before death the following evidence was relied upon;
- a) They continued to live together at their most recent property;
- b) They continued to share a bedroom, despite Ms. Jadidian not spending every night in the same bedroom;
- c) Evidence about their ongoing romantic relationship, including their apparent happiness when they attended a holiday dinner at her home in December 2019;
- d) The photographs of Ms. Jadidian and Ms. Razafsha from September–December 2019 depict a couple enjoying various outings and social events together; and
- e) Jadidian’s note before she died included an apology and a message that said, “Mina, I love you.”
The ultimate question will always be, how did the couple present themselves to the world? In addressing this, evidence from outside sources, such as income tax records, beneficiary status on other policies, social events and other circumstances where it was made clear to the world that they were in a relationship will be crucial.
Careful consideration is needed when drafting a Will, or when determining what exactly your rights are when Estate litigation matters arise. For assistance with these concerns and to help guide you through this complex process, please contact any member of our Estate group.
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Scott Somers Lawyer | Estate Planning & Litigation Langley |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing