Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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In my blog earlier this week I discussed how in Ontario the Succession Law Reform Act (“SLRA”) extends to common-law spouses the ability to seek dependant’s support. As stated in my blog, the definition of spouse in Part V of the SLRA includes two people who are not married to each other but who have “cohabited continuously for a period of not less than three years”.

Looking to this definition, the obvious next question is just what does it mean to “cohabit”? In Part V of the SLRA, to “cohabit” is defined as “to live together in a conjugal relationship”.

A simple reading of this provision leads you to one conclusion. You must live together to be considered common-law spouses. But is this necessarily the case? There are multiple varieties of relationships today. If two people do not live together, but otherwise present themselves to the world as spouses, does this preclude them from ever being defined as a “spouse” within the SLRA?

In Molodowich v. Penttinen, [1980] O.J. No. 1904, the court provided for seven broad factors to be considered when determining whether a couple “lives together in a conjugal relationship”. The test employed in Molodowich was later confirmed by the SCC in M. v. H.  As made clear in Molodowich, so long as a couple meets enough of the criteria listed, they are to be considered “living together in a conjugal relationship”, and thus may qualify as “spouses”.

This more flexible approach is perhaps best phrased by the Ontario Court of Appeal in Stephen v. Stawecki, where at paragraph 4 they provide:

“The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible… We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that specific arrangements made for shelter are probably treated as only one of several factors in assessing whether the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.”

Looking to the language contained in Stephen v. Stawecki, as well as the factors delineated in Molodowich, it is arguable that common-law spouses need not live under the same roof to be considered “spouses” within Part V of the SLRA. So long as they meet enough of the criteria listed in Molodowich, they may be considered living together in a conjugal relationship.

Thank you for reading.

Stuart Clark 

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In a story that made headlines over the weekend, the Supreme Court of Canada ruled last week that common-law spouses in Quebec are not entitled to the same rights regarding support as their married counterparts.

The decision has led to much discussion in the media regarding what rights common-law spouses have, and as was made clear in one news report I saw, it appeared that many common-law spouses took it for granted that they would be afforded the same rights by the court as their married counterparts.

The ruling was not without its dissenters, as Justice Abella, in disagreeing with the majority and arguing that the current scheme was unconstitutional, states:

“Since many spouses in de facto couples exhibit the same functional characteristics as those in formal unions, with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusion from similar protections perpetuates historic disadvantages against them based on their marital status”.

In Ontario, while common-law spouses do not universally enjoy the same rights as their married counterparts (see our blog on inheritance rights of unmarried couples), under certain circumstances the Ontario legislature has advanced to common-law spouses the same rights as those who are married.

Within the Succession Law Reform Act, in identifying those who are entitled to apply to the court for dependant’s relief, section 57 defines a “spouse” as including two people who:

            “are not married to each other and have cohabitated,

            (i) continuously for a period for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.”

Common law spouses do not universally enjoy the same rights as their married counterparts. While statutes such as the Succession Law Reform Act have advanced to common-law spouses some statutory protection, this protection is not universal.

Thank you for reading.

Stuart Clark

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At a seminar sponsored by Hull & Hull LLP, the “Breakfast Series”, Ian Hull discussed the impact of Kerr v. Baranow in Estates law. The Supreme Court’s decision establishes the framework for how the courts apply the principles of equity to property claims by unmarried spouses. Unmarried spouses can turn to Joint Family Ventures (“JFV”) as a remedy to argue that they are entitled to specific property.

The decision was applied in Hillier Estate v. McLean. In this case, the deceased’s daughter brought an action to have the deceased’s former common law wife, Ms. McLean, removed from the house owned by the deceased. The deceased and Ms. McLean separated several times during their relationship. At the time of the deceased’s death, they were separated and had entered into a Separation Agreement.

The court found the existence of a JVF based on the following facts:

1. The deceased and Ms. McLean had only one bank account and it was in the deceased’s name.

2. Ms. McLean had been on social assistance in the early stages of the relationship.

3. Living with the deceased had allowed Ms. McLean to maintain her desired lifestyle in her desired community without the need for social assistance.

4. Ms. McLean’s limited contributions to the house represented some benefit to the deceased and a corresponding deprivation to her.

5. Ms. McLean and the deceased had planned to build the house together with the intention that they would live in it as a family.

Upon finding that a JFV existed, the Court found that Ms. McLean was entitled to a greater portion of the deceased’s property than the Separation Agreement allowed. However, as she had not worked to contribute to the family and as she had not contributed equally to the acquisition of the house, the Court found that Ms. McLean was only entitled to 10% of its equity.

Holly LeValliant

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In last week’s blog, found here, I talked about interpretation issues surrounding section 57 of the Succession Law Reform Act ("SLRA").  Fortunately, the SLRA provides the definition of ‘spouse’ and ‘cohabitated’.  According to the SLRA, ‘cohabitated’ is defined as, “…to live together in a conjugal relationship, whether within or outside marriage” [emphasis added].  As the SLRA fails to define what it means to live in a conjugal relationship, it was necessary to turn to the common law for our answers.

The common law has also provided interpretive assistance in defining ‘to live together’.  Specifically, the courts have addressed whether a couple can still live together but not under the same roof.

The leading case to address whether ‘cohabitation’ requires two people living under the same roof is Stephen v. Stawecki, a 2006 case of the Ontario Court of Appeal.  In Stawecki, the court had to deal with a couple which began their relationship in March 1999.  By December 1999, even though they maintained separate residences, the couple spent most nights together, and lived their lives together for the most part as a couple.  In May 2003 one of the parties died, and the other party subsequently applied for dependant’s support.  In the course of the application, the issue of whether the couple were “spouses” was raised, for although the couple moved in together in April 2001, in order to be cohabitating for the required three years the couple would have had to move in together before May 6, 2000. The appellant argued that as the couple did not live under the same roof for three years, they could not meet the definition of “spouse” within the SLRA. The Court of Appeal disagreed.

In determining if the couple lived in a spousal relationship, the Court looked to the factors from Molodowich v. Penttinen, which I listed in my previous blog.  Upon reviewing the facts in the case, the Court of Appeal stated at paragraph 3, “[t]he necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later.  Their relationship was an exclusive one, neither party being unfaithful.  They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple, and were treated as such by their friends, family, and neighbours.”

The court went on to state at paragraph 4, “[t]he case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible.  In our view, to accept the appellant's argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. in this area.  We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship”.

This reasoning was later supported in the 2008 Court of Queen’s Bench of Manitoba decision of Bullied v. Kallen, where at paragraph 7, Menzies J., states “[a]lthough sharing a common habitual residence is a factor the court will consider, whether or not the parties share a common residence is not determinative”.

Ian Hull 

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Although such a commonly used phrase in today’s society, the type of relationship that amounts to a spousal relationship according to the law is an area that is often litigated over in Court. 

Section 57 of the Succession Law Reform Act (“SLRA”) defines spouse as: “a spouse as defined in subsection 1(1) [of the SLRA] and in addition includes either of two persons who, (a) were married to each other by a marriage that was terminated or declared a nullity, or (b) are not married to each other and have cohabited, (i) continuously for a period of not less than three years, or, (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.”

After reading the definition of spouse, a logical question that arises is the meaning of “cohabitated”.  Section 57 of the SLRA accounts for this by defining “cohabit” as, “…to live together in a conjugal relationship, whether within or outside marriage”.  Unfortunately, the SLRA offers no further definition of what it means to live in a conjugal relationship.  Therefore, attention must turn to the common law.

The case of Molodowich v. Penttinen 1980 CanLII 1537 (ON SC), a decision by District Court Judge S.R. Kurisko out of Thunder Bay,is the leading decision when it comes to defining, “…to live together in a conjugal relationship”. Molodowich defined seven broad factors to consider in assessing whether two persons have lived together in a conjugal relationship. These factors include:

1.            Shelter

(a)          Did the parties live under the same roof?

(b)          What were the sleeping arrangements?

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 toward 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

(a)          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 provision of or contribution toward the necessities 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?

7.            Children

(a)          What was the attitude and conduct of the parties concerning children?

The seven factors approach from Molodowich was confirmed and adopted by the Supreme Court of Canada in M. v. H [1999] 2 S.C.R. 3.  In M. v. H, the SCC stated that in looking to these factors to determine if there was a “conjugal” relationship, the parties do not have to meet all of the criteria listed, and that the factors may be present in varying degrees and that not all are necessary for the relationship to be found. In order to come within the definition, couples are not required to fit precisely the traditional marital model.

Ian M. Hull

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A recent English article reports that its Law Commission recommends that unmarried couples who have lived together for five years or more should be able to inherit from each other without writing a Will. The author notes certain other recommendations, contained in the Inheritance (Cohabitants) Bill:

·                    the entitlement should be applied after two years of cohabiting if a couple has a child, providing the child was living with the couple when one parent died;

·                    qualifying cohabitants should have the same entitlement under the intestacy rules as a spouse; and

·                    if the deceased has a husband or wife from a "fossil" marriage – where a couple are living apart but have never divorced – the surviving cohabitant has no entitlement to any of the estate.

The Law Commission apparently notes that cohabiting couples are among the people least likely to have a will. Under the current English intestacy laws, similar to our legislation, property is passed on to family members in order of closeness of the blood relation. However, like our system, unmarried partners are currently not entitled to the deceased partner’s property, but can apply to court for support. That said, this can be a costly and time-intensive process. I have always found it unfortunate in cases where long-time common-law spouses had to bear the expense and emotional drain of fighting for their dependant support award.   

Given the reality here and abroad that cohabiting unmarried couples represent an increasing percentage of families, this type of legislative change may soon be solidified in the United Kingdom and make its way to us. It seems from the comments I read about this article that people are divided on the subject. I, for one, think that it is time for this type of review, especially if it could lead to a reduction in or narrowing of the types of dependant support claims we see in our system.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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Discussing death and planning for such eventuality is a topic that is often uncomfortable and thus avoided, resulting in a transfer of assets which may not reflect the wishes of the deceased.   This can be especially true if you aren’t certain about how your lifestyle impacts your Estate. A recent article in the Financial Post spoke about the impact that misconceptions about marital status can have on estate planning. 

I’m sure you’ve heard it before, or may even be part of the demographic that isn’t concerned about your estate planning because you believe that status as a common-law spouse will suffice to transfer your assets to your partner on death. Although common-law status in Canada is relatively developed, affording many benefits similar to those enjoyed by the legally wed, such benefits do not extend to those received upon death.

Laws differ across the provinces; however, in Ontario a common-law spouse does not have rights to the deceased partner’s estate. Legal avenues to seek redress require commencing legal action against the Estate, a costly and often emotionally difficult process. As is often discussed on our blog, alternative planning options are available, it simply requires time and effort to ensure that your wishes are put into place. Knowing the implications of your marital status on your estate, and giving effect to your intentions can have a simple fix. It’s worth considering.

Until Tomorrow,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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As has been my mantra all week, Justice Cromwell, who delivered the reasons for the Court in Kerr v. Baranow & Vanasse v. Seguin, commented that for unmarried persons in domestic relationships in most common law provinces, judge made law is the only option for addressing the property consequences of the breakdown of those relationships. 

A property interest by resulting trust arises where 1) there is a gratuitous transfer of property from one partner to the other, or 2) there is joint contribution by two partners to the acquisition of property, title to which is in the name of only one of them.

Added to this has been the “purely Canadian invention” of the “common intention” resulting trust, whereby a resulting trust could arise based solely on both partners having a common intention that one holds property for the beneficial interest of both. However, the Court declared that this concept was doctrinally unsound and should have no continuing role in the resolution of domestic property disputes. 

A far better approach was to apply the law of unjust enrichment and the remedial constructive trust, which provide a much less artificial, more comprehensive and more principled basis to address property claims on the breakdown of domestic relationships. To be successful, a plaintiff had to establish 1) an enrichment of the defendant by the plaintiff 2) a corresponding deprivation of the plaintiff, and 3) the absence of a juristic reason for the enrichment.

The appropriate remedy for unjust enrichment will most often be monetary though there may be some circumstances in which a monetary remedy will be inadequate and a proprietary remedy is required.  

When quantifying a monetary remedy, a quantum meruit approach should be applied and value assessed on a “value survived” basis, which is preferable to imposing a remedial constructive trust. To be entitled to a monetary remedy on a value survived basis, the claimant must show both that there was a joint family venture and that there was a link between his or her contributions and the accumulation of wealth.

This decision provides much guidance to courts in determining the property rights of unmarried partners and will no doubt prove instructive in cases where individuals die without having provided properly with respect to the property accumulated during their lifetime with a common law spouse.

Sharon Davis - Click here for more information on Sharon Davis. 

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In of Vanasse v. Seguin (the companion case to Kerr v. Baranow, heard at the same time) the common law couple was together for 12 years, from 1993 to 2005. For the first four years both parties pursued their careers. The common law wife (“wife”) then left her job to move to Halifax so the common law husband (“husband”) could pursue a business opportunity. Over the next three and a half years, their two children were born and the wife stayed at home to care for the family. The husband stepped down as CEO of the business he started and they returned to Ottawa in 1998, where they bought a home in both their names as joint tenants. In 2000, the husband received approximately $11 million for his shares in the business and from that time, until their separation in 2005, he participated more with the domestic chores.  

The trial judge found that there was no unjust enrichment for the first and last periods of the couple’s cohabitation, but held that the husband had been unjustly enriched at the wife’s expense during the period in which the children were born and was entitled to half of the value of the wealth the husband accumulated during the period of unjust enrichment, less her interest in the home and RRSPs in her name. 

The Ontario Court of Appeal set aside this award and directed that the proper approach to valuation was a quantum meruit calculation in which the value each party received from the other was assessed and set off, essentially treating the wife as an unpaid employee.

In the Vanasse appeal, the central problem was how to quantify a monetary award for unjust enrichment. The Supreme Court of Canada found that a monetary award for unjust enrichment need not, as a matter of principle, always be calculated on a fee-for-services basis, allowed the appeal, and restored the order of the trial judge.

Sharon Davis - Click here for more information on Sharon Davis. 

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The Supreme Court of Canada recently considered the property rights of common law spouses in the companion cases of Kerr v. Baranow & Vanasse v. Seguin. These cases required consideration of the following legal issues:

1. The role of the “common intention” resulting trust in claims by domestic partners. 
2. Whether the monetary remedy for a successful unjust enrichment claim must always be assessed on a quantum meruit basis.
3. Mutual benefit conferral in the context of an unjust enrichment claim and when this should be taken into account. 
4. The role the parties’ reasonable expectations play in the unjust enrichment analysis. 

In Kerr v. Baranow, a common law couple in their late 60’s split after 25 years, during which time both partners worked and contributed to their mutual welfare. The common law wife (“wife”) claimed property on the basis of resulting trust and unjust enrichment.   The common law husband (husband”) counterclaimed that the wife had been unjustly enriched by his housekeeping and personal assistance after she suffered a debilitating stroke.

The trial judge awarded the wife $315,000, (1/3 of the value of the home the couple shared, but which was in the husband’s name) by way of resulting trust and unjust enrichment, because the wife had provided $60,000 worth of equity and assets at the beginning of their relationship. 

 The B.C. Court of Appeal allowed the husband’s appeal because it found the wife did not make a financial contribution to the acquisition or improvement of the property, and ordered a new trial for the husband’s counterclaim.

The Supreme Court of Canada allowed the wife’s appeal from the dismissal of her unjust enrichment claim and ordered a new trial.  Her appeal from the order dismissing her claim in resulting trust was dismissed.  The order for a new hearing of the husband’s counterclaim was affirmed.

Tomorrow’s blog will cover the facts in Vanasse v. Seguin and in our last blog of the week we will explore the main issues discussed in relation to property rights of common law spouses in the context of these two cases.

Sharon Davis - Click here for more information on Sharon Davis. 

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Yesterday’s blog considered the fact that a common law spouse has no beneficial entitlement to his or her deceased spouse's estate on an intestacy.  There are, however, remedies available to the disappointed spouse. 

The first of these is a claim for dependant support found in Part V of the Succession Law Reform Act, whereby a common law spouse (or any other “dependant” of the deceased)  can ask for support where no adequate provision has been made for the dependant by the deceased.  

The Court has broad discretion to grant relief that, according to section 62(3) of the Act, can take a variety of forms, including the transfer, use or occupation of specified property in satisfaction of the dependant’s need for support.  

In many situations involving long-term common law relationships, there may also be an argument for equitable (as opposed to legal) ownership of property by the surviving common law spouse. These rights will be founded on the principles of unjust enrichment and include, for example, resulting or constructive trust, and proprietary estoppel.

The Supreme Court of Canada has recently considered two cases that provide guidance on unjust enrichment in the context of common law relationships. The Court released one decision in the matters of Kerr v. Baranow, and Vanasse v. Seguin, which I will be discussing in the next couple of blogs.    

Sharon Davis - Click here for more information on Sharon Davis. 

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The recent B.C. Court of Appeal decision of McMillan v. Johnson (Estate) 2011 BCCA 48, deals with the valuation of an unjust enrichment claim of a long-time common law wife against the estate of her deceased common law husband. 

The couple lived together for almost 40 years and both contributed to a family fishing business, of which the deceased was the sole shareholder.  The deceased did not properly provide for his wife and although she would have had a claim under the Wills Variation Act, she was out of time and so claimed a constructive trust against the only valuable asset in the estate, a $2.4 Million shareholder’s loan owed to the deceased by the fishing business. 

The trial below proceeded summarily and rather than declaring a constructive trust, the trial judge awarded the wife a monetary remedy of 50% of the value of the loan ($1.2 Million). 

On appeal the estate argued that the value should have been assessed at 50% of the market value of the company at the time of trial, which would reflect the decline in the fishery since death, and that the judge erred in awarding the book value of the loan valued as at the date of death. The estate led no evidence of the actual value of the company at trial and sought to introduce this as fresh evidence on appeal.

The appeal was allowed and a new trial ordered on the question of the value of the loan and the company as at the date of the new trial.  Fresh evidence as to the value of the company was not allowed. The judge intended to award a monetary remedy in lieu of a proprietary remedy, and therefore the valuation date should have been the date of trial.   

If you are interested in a more in depth consideration of the case law on constructive trusts, unjust enrichment and quantum meruit, and whether/when an in personam monetary remedy or proprietary remedy is appropriate, you should refer to the decision for some helpful comment on these issues.  

Sharon Davis - Click here for more information on Sharon Davis. 

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 I recently finished reading The Girl with the Dragon Tattoo by Swedish author, Stieg Larsson. Larsson is one the world’s best selling authors, having sold 20 million books worldwide. He is currently on both the hardcover and paperback fiction bestsellers lists for the Globe and Mail and the New York Times.

In 2004, shortly after entering into a publishing agreement, Larsson unexpectedly died at the age of 50.  His three bestselling novels were published posthumously and have been immensely popular both in Sweden and internationally.

The drama behind his estate has also captured Sweden’s attention pitting Larsson’s common law spouse of thirty years, Eva Gabrielsson, against Larsson’s other surviving relatives.

While at the time of his death, Larsson’s estate was modest, the success of his books has resulted in a windfall for his estate. A Will made in 1977, leaving his estate to the Communist Workers League, was found to be invalid and Mr. Larsson was found to have died in intestate.  Larsson’s father and brother inherited his full estate.

Gabrielsson inherited nothing from Larsson’s estate and has become a symbol for what many see as unfair inheritance laws. She is currently writing a memoir on her experiences and is working to change Sweden’s inheritance laws to include rights for common-law spouses.

In Ontario, common law spouses are not included in Part II of the Succession Law Reform Act, which governs intestate succession. A common law spouse can bring a dependant’s relief claim to sue the estate for support or bring a claim for unjust enrichment, constructive trust, or quantum meruit claim against the estate.

Thanks for reading,

Diane Vieira 

 Diane Vieira - Click here for more information on Diane Vieira.

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Annuities are often employed when an individual plans his or her estate. We have covered different aspects of annuities on past blogs on Hull on Estates.

A testator, for example, may choose to have one child’s portion of the future estate placed into an annuity that will create a flow of money over time. The child would have access to the cash flow, but not necessarily access to the principal amount. 

In September 2008, Gayle Reid applied to the Superior Court of Justice for an interpretation.  The claimant’s father, Bernard Wiesberg, died and left an annuity to his friend, Avonne Richter (also identified as his common-law spouse). Minimum annual payments of the annuity were directed in the Will to Ms. Richter who received them from 2003 through to 2007. 

The Applicant was to receive the residue of her father’s estate.  A 2005 Order by Dandie  J.  required Ms. Richter to designate Ms. Reid as the beneficiary.  (A provision of the Income Tax Act required the beneficiary to be named, otherwise the retirement income fund would have collapsed, defeating the testator's intent.)

The issue arose when Ms. Richter, who received the previous annual annuity payments in arrears up to 2006, chose to take the $17,015.57 payment in January, in advance for that year. Ms. Richter died on April 17, 2007.

The Applicant sought an interpretation of her father’s Will, specifically regarding the annual payments. As the payments were for the “lifetime” of Ms. Richter, the Estate owed $12,027.44 to the Applicant because the Court reasoned that calculations must be made to the date of Ms. Richter’s death. Therefore a pro-rata calculation was “the only reasonable and fair manner to ensure the two gifts in the Will are honoured.”

If the annuity had been paid in arrears that December, Ms. Richter’s Estate would have been owed a pro-rata amount of the annuity for that year calculated to the date of her death.

Have a good day.

Jonathan

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Listen to A Review of Dependant Support Claims

This week on Hull on Estates, David Smith and Jonathan Morse review some of the recent podcasts and hone in on some of the evidentiary requirements of a common-law spousal relationship as it relates to dependant support claims under the Succession Law Reform Act. They look at some recent case law and some of the requirements under the Ontario statute.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
 

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Common law spouses are not included in Part II of Ontario’s Succession Law Reform Act, which governs intestate succession (dying without a valid Will).

In British Columbia, unlike Ontario, intestate laws now provide the same rights to common law spouses as to married spouses, if the couple lived together in a marriage-like relationship for a period of at least two years before the death of one of them.  Recent case law out of British Columbia has grappled with the issue of identifying common law spouses in cases of intestacy. 

In Austin v. Goerz, 2007 BCCA 586, the deceased had been separated, but not divorced, from his wife for six years.  During the last six years of his life, the deceased lived with another woman, Ms. Goerz, as husband and wife.  The deceased died without a Will.  On the death of the deceased, the legally married spouse, Mrs. Austin, brought a claim seeking a declaration that Ms. Goerz was not the deceased’s common law spouse.  The lower court dismissed Mrs. Austin’s claim, and she appealed to the British Columbia Court of Appeal.  On appeal, Mrs. Austin argued that the deceased, while legally married, could not have a common law spouse as he lacked the legal capacity to marry.  Mrs. Austin also argued that Ms. Goerz was not a common law spouse as there was no financial dependence between her and the deceased during their relationship.  Both arguments were dismissed.  The Court of Appeal recognized that common law relationships can exist even though one or both partners lack the capacity to marry.  Furthermore, lack of financial dependence is not determinative in identifying common law relationships. 

Have a great day!

Bianca La Neve