Even if a claimant is not married to the deceased, if they are common law spouses, there is potential for a variation claim under the WESA
WESA defines spouse as:
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.
Under WESA, two persons cease being spouses of each other if in the case of a marriage-like relationship, one or both persons terminate the relationship. For the purposes of WESA, spouses are not considered to have separated if, within one year of separation, they begin to live together again and the primary purpose for doing so is to reconcile, and they continue to live together for one or more periods, totaling at least 90 days.
In Gostlin v. Kergin (1986) 3 BCLR (2d) 264, the Court of Appeal considered whether an unmarried couple were “common law” spouses. The test applied was whether or not each partner in the relationship considered himself or herself “committed to life-long financial and moral support” of the other.
In Johanson v. Hughesman (1991) 58 BCLR (2d) 141, the Court found a common law relationship in a relationship that was less “marriage like”. The fiancée, with whom the deceased spent most of his time until his death five days before their planned wedding, was a spouse within the definition. The relationship had lasted six years, although the deceased occasionally stayed at night at his parent’s home, where he kept most possessions.
In Takacs v. Gallo (1998) 105 BCAC 115, the Court of Appeal cited a seven-part test for cohabitation:
(a) Did the parties live under the same roof;
(b) What were the sleeping arrangements; and
(c) Did anyone else occupy or share the available accommodation?
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; and
(g) Did they buy gifts for each other on special occasions?
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals;
(b) Washing and mending clothes;
(d) Household maintenance; and
(e) Any other domestic services?
(a) Did they participate together or separately in neighbourhood and community activities; and
(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?
(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 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; and
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship.
(a) What was the attitude and conduct of the parties concerning children.
Of note, even if there are periods of living separate and apart, the test for a common law spouse can still be met. Although “cohabitation” is not mentioned under WESA, these cases still provide a useful framework from which to determine whether a relationship will be considered “marriage-like” for the purposes of estate litigation.
The law to apply is further set out in Kirk v. Hackl (2006) CarswellSask 833:
The law is well settled that the word “continuously” is not be interpreted as without interruption. That is, a relationship can be interrupted by separations that do not necessarily amount to withdrawal from the relationship or termination of consortium for the purposes of the statutory definitions. To bring cohabitation to an end, there must be a physical withdrawal with intent to end the relationship. A brief cooling off period may not convincingly show a settled state of mind that cohabitation has terminated. However, where there is separation, the onus is on the applicant to prove that neither party intended that the separation be permanent. In the end, the Court must assess the effects of temporary separation by identifying the intention of the parties at the time.
In summary, the Court will find a common law relationship if there is a marriage like relationship for at least 2 years even when there is a period of separation.
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