Who is a Spouse – the Court of Appeal speaks
There has been much discussion, particularly in the last decade, about the legal definition of “spouse”. One of the reasons for this is the significance of that status in Estate circumstances and, more specifically, where a person dies without a Will (meaning when a person dies “intestate”).
Without a Will, an Estate is distributed according to legislation (the Wills, Estates and Succession Act) (“WESA”). A surviving “spouse” will receive at least a portion of the Estate, where the deceased is also survived by children. If there are no children, a “spouse” will inherit the entire Estate.
The current complexity stems largely from the fact that there is no definition of “spouse” or “marriage-like” in the WESA. In Section 2, the Act says that persons are spouses if they’ve been married or if they’ve lived at least 2 years in a marriage-like relationship. But that hardly tells the whole story. A “marriage-like relationship” has proven to be a challenge to define.
As our law has evolved, our Courts have said that, essentially, each case is “fact driven”, which partly means that the circumstances need to be examined carefully and at length, in reaching a decision in any specific case. So precedent won’t necessarily assist the Court in any case. Also, Courts seem to be saying that, in characterizing the relationship, it has to be considered contextually. So, for example, whether the couple actually live together is only one factor. Their financial setup, also, is only one factor.
Last week, our Court of Appeal released reasons in a case called Coad v. Lariviere. While the Trial Court found the relationship was not “marriage-like”, the Appeal here was allowed, so the case is important.
The deceased died on Christmas day, in 2016. She did not have children. She had lived with a man (“the spouse”) and she was also on good terms with her ex husband. The ex husband never sought an Order that he was a “spouse” and he was not considered a spouse.
The deceased had made a Will, the most recent one being in 2005. However, she revoked it in 2006 and never made another one.
The Estate consisted of a house, valued at about $1.6 million, though it was mortgaged.
There was considerable litigation. Both the ex husband and the spouse, with whom she lived in the last 3 years of her life, sought a grant of probate of the 2005 Will. But, a revocation document was found, by accident, after the death of the deceased. The spouse then changed his application from a probate application to an application for Administration (as there was now no Will). For some reason, the ex husband still applied for a grant of Pro-bate of the 2005 Will, which was granted by the Registry. In the end, however, the Court found that the deceased died intestate.
With the finding of intestacy, the question of the legal nature of the relationship between the deceased and the spouse became significant. If the relationship was “marriage-like”, the spouse would then inherit the entire Estate.
The Court thoroughly and carefully analyzed the Trial Judge’s decision. What the Court seemed to focus on was the Trial Judge’s listing of a number of factors that served as a kind of guideline in the effort to determine whether a relationship was “marriage-like”. Among the factors were whether the couple treated themselves as a family unit and whether they co-mingled assets and shared expenses.
The Court of Appeal rejected that “checklist” approach. The Court also felt that there was scant analysis of the evidence.
The Court went on to consider whether the Trial Judge’s handling of the evidence and decision were erroneous and concluded that it was erroneous. The Court said that the proper approach to take in determining whether a couple were in a marriage-like relationship is a “contextual and holistic” one. The Trial Judge, in the eyes of the Court of Appeal, did not follow that approach. The Court seemed to suggest that following a checklist, rather than considering the evidence as a whole, was inappropriate. The spouse and the deceased were then held by the Court of Appeal to have been spouses in a marriage-like relationship.
Legally speaking, the characterization of relationships in B.C. has become a complex task, except of course where the couple marries. However, as the marriage rate in our society drops and the rate of marriage-like sorts of relationships increases, the characterization issue has become more important, especially in Estate situations, because the inheritance rules are so different, potentially affecting several people (such as the family of the deceased in this case, who were expecting an inheritance). The Court will, I think, take a flexible, rather than a checklist, approach to characterizing a relationship. Finally, this case also illustrates the importance of making a Will.