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Epstein’s This Week in Family Law | Marriage-like relationship

What constitutes a marriage-like relationship, thus making property division and spousal support issues, looked at in recent decision



Epstein’s This Week in Family Law



By: Philip Epstein



What Constitutes a “Marriage-Like Relationship”

Kneller v. Greenwood, 2015 CarswellBC 2291 (B.C. S.C.): The issue in this proceeding is whether the parties were in a marriage-like relationship during a 9-1/2 year period, because if they were, a division of family assets and spousal support would be live issues.

Given the length of this relationship, between July 2003, and November 2012, I marvel at the fact that the respondent had the chutzpah to argue that they were not in a marriage-like relationship. Justice Weatherill canvasses in detail all of the evidence and he finds the respondent’s evidence and his witnesses incredible. The trial judge had no hesitation in accepting in its entirety the evidence of all of the witnesses that were called on behalf of the claimant. No so for the respondent.

There is nothing particularly new in the legal analysis but, to some extent, this is relatively new for British Columbia since this issue did not arise until the passage of their new Family Law Act. As Justice Weatherill notes:

No single factor is dispositive of the issue of whether two people are spouses. The court must consider the relationship as a whole and consider all the various objective criteria. Financial dependence is not an essential ingredient. Nor is the subjective belief of one of the parties that they are not spouses determinative: Weber v. LeClerc, 2015 BCSC 650 at paras. 10-12.

Justice Weatherill notes that the British Columbia courts have followed Molodowich v. Penttinen, 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which is clearly the leading case in Canada on what constitutes a spousal relationship. However, for the benefit of British Columbia counsel and those in other provinces who are waiting for the penny to drop and their legislation gets amended to include common law spouses, I repeat the indicia as set out in the cases canvassed by Justice Weatherill:

1. Shelter:

a Did the parties live under the same roof?

b What were the sleeping arrangements?

c Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:

a Did the parties have sexual relations? If not, why not?

b Did they maintain an attitude of fidelity to each other?

c What were their feelings towards each other?

d Did they communicate on a personal level?

e Did they eat their meals together?

f What, if anything, did they do to assist each other with problems or during illness?

g Did they buy gifts for each other on special occasions?

3. Services: What was the conduct and habit of the parties in relation to:

a preparation of meals;

b washing and mending clothes;

c shopping;

d household maintenance; and

e any other domestic services?

4. Social:

a Did they participate together or separately in neighbourhood and community activities?

b What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

5. Societal:

What was the attitude and conduct of the community toward each of them and as a couple?

6. Support (economic):

a What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?

b What were the arrangements concerning the acquisition and ownership of property?

c Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

In any event, the evidence in this case, as accepted by the trial judge, was overwhelming that the relationship between the claimant and the respondent was that of spouses sharing their lives. Put another way:

In the face of this evidence, the mere fact that the respondent may not have thought that he was in a marriage-like relationship and was insistent that there be no formal financial or documentary connection between he and the claimant does not change the reality of his relationship with the claimant. In this case, the objective factors substantially override his subjective intentions.

As a result of the marriage-like relationship, property division and support followed. There is nothing particularly new here for those that practice in provinces that afford property rights to common law spouses and this case is a useful reminder of the principles.

Read more on why evidence of impairment is found insufficient to support conviction for impaired driving

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