British Columbia's unique succession legislation has given rise to a new trend in estate litigation. The increasing number of couples choosing informal long-term relationships has prompted the legislature to capture this social reality in the Wills, Estates, and Successions Act. While other Canadian jurisdictions only recognize married spouses' (Ontario) or formal civil union partners' (Quebec) rights to inherit, Section 2(1)(b) of British Columbia's WESA grants couples much more flexibility:
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 [...]
(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 [...]
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
While this provision better represents the lives of more Canadians, its lesser rigidity has changed the landscape of inheritance. The definition of a “marriage-like relationship” and its termination has become a hotly contested issue in BC courts. A series of cases have tried to identify what constitutes a “marriage-like relationship” pursuant to the WESA and what actions can terminate it. The determination of whether one qualifies as a spouse entitles them to half the intestate decedent's estate or nothing at all (s. 21(6)(b)(ii) WESA). In cases involving large sums of money and high emotions, the court may be called upon by potential heirs to determine whether the decedent's partner meets the Section 2 criteria.
Although a case under the Family Law Act, Weber v Leclerc, 2015 BCCA 492 analyzed the test for a marriage-like relationship. The appellant complained that the factors set out in the 1980 case Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC) were unfairly treated as an exhaustive checklist. The factors include:
While Weber was primarily a family law case, its impact extends to issues of marriage and succession under BC estate law. Justice Groberman confirmed that finding a “marriage-like relationship” could not be done through a checklist approach. Instead, the factors must be weighed against each other to analyze quasi-spousal relationships. This approach would soon open the floodgates for petitioning for spousal status under WESA to inherit from intestate estates.
Four years after Weber, Robledano v Queano 2019 BCCA 150 gave the Court the opportunity to incorporate the new standard into Section 2 of the WESA. The Court had to decide whether Robledano, who had a relationship with Jacinto (the intestate deceased), qualified for a Section 2(1) “marriage-like relationship” and thus entitled to the entirety of her partner's estate under Section 20. Queano (Jacinto's sister) objected to this claim, stating that the two did not live in a marriage-like relationship at the time of the deceased's death as their relationship had ended years prior. The evidence demonstrated that the couple was working on rebuilding their relationship afterwards, despite continuing to live in separate residences. Yet, after their alleged reconciliation, the Jacinto executed and then destroyed a will naming Robledano as the sole beneficiary, casting doubt on the relationship's rekindling.
The first issue to settle was whether the s. 2(1) only includes couples who had lived together for two years immediately prior to death. Justice Groberman concluded that cohabitation for two continuous years only needed to occur at some point in the relationship, not necessarily up until the decedent's passing. Instead, the analysis had to be a two-part test. First, judges must determine whether the partners lived together for two years to create a marriage-like relationship. Second, they must ascertain whether either party terminated the spousal relationship under s.2(2)(b).
In the first part of the test, Robledano and Jacinto were living together in a “marriage-like relationship” throughout 1985-2000, and 2005-2010, and thus had been in a marriage-like relationship. Justice Groberman then considered whether the relationship was terminated. In doing so, he cemented a holistic test. The “imprecise and flexible legal standard” requires judges to weigh each spouse's expressed and implied intentions with objective evidence about the relationship. The judge must make a “judgment call” to determine whether the relationship was terminated. In this case, Justice Groberman found that the decedent and her partner had reconciled before the former's death and thus continued to be in their marriage-like relationship. There is no reason why a temporarily paused spousal relationship can not resume when the couple reconciles. Robledano was authorized to inherit.
Mother 1 v Solus Trust Company, 2019 BCSC 200 and its appellate review Mother 1 v. Solus Trust Company Limited, 2021 BCCA 461 applied the new flexible, holistic, and fact-focused standard to a complicated relationship. Yuan, a Chinese-Canadian millionaire, was suddenly murdered and died intestate, leaving behind an estate of $21 million. A decade-long partner of the deceased (Mother 1) petitioned the court to recognize her as a spouse under WESA ss2(1)(b). However, Yuan had five different relationships seven years before his death. He fathered a child with each of these partners. Complicating matters further, Mother 1 had lived in China while Yuan had moved to Canada. They spent little time together even when in the same country, and there was no evidence of sexual intimacy between them for years prior to Yuan's death. Yuan's four other partners all testified against the existence of a marriage-like relationship with Mother 1. On the other hand, Mother 1 maintained a close relationship with Yuan's parents, attempted to obtain visas to visit Yuan in Canada, and was found to genuinely believe that she was Yuan's sole spouse (even if he had affairs).
The trial judge applied the Robledano holistic approach to the extensive facts in Solus Trust and found no marriage-like relationship between Yuan and Mother 1. Instead, Yuan's actions demonstrated his intentions to live a single “playboy” lifestyle. Alternatively, if there was ever such a spousal relationship between Yuan and Mother 1, Yuan terminated it either in 2011 when he quit Mother 1's residence or in 2014 when he relocated to Canada with Mother 2.
On appeal, Justice Oosten was asked to determine if the trial judge applied a restrictive approach to the evidence or if he made a palpable and overriding error in fact-finding or assessing Mother 1's credibility. In reviewing the case, Justice Oosten declared that it would be inappropriate to reweigh 14 days of trial evidence and reassess the credibility of the numerous witnesses. The judge at first instance was best placed to assess the facts of the case. Nonetheless, Justice Oosten recounted how the trial judge accurately recorded his findings and determinations. The inconsistencies between testimonies and vague recollections from Mother 1 entitled the lower court to make a determination on Mother 1's credibility. In his use of the evidence, the trial judge examined Mother 1 and Yuan's relationship holistically, taking into account all relevant factors and the parties' intentions.
The original decision acknowledged that Mother 1 truly considered herself the spouse of Yuan and conducted herself in a manner supporting this position. However, he was correct in ruling that one person's belief in the existence of a spousal relationship is not determinative of its existence. The subjective intention of the decedent to refrain from a marriage-like relationship was a strong indicator against its existence. The objective factors of separate residences, numerous relationships, lack of intimacy, and lack of time spent together also discredited Mother 1's claims of a marriage-like relationship. The trial judge was entitled to find that the evidence demonstrated that no marriage-like relationship ever existed, and if it had, that it had been terminated years before Yuan's death. In making a s.2(1)(b) and s.2(2)(b) determination, the trial judge remains best suited to conducting the holistic assessment of the relationship. Despite being a mix of fact and law, an in-depth and fact-specific analysis is clearly best done by the judge of first instance. Courts of Appeal tend to defer to them.
Yet the fact-based holistic approach has its disadvantages. In cases where cultural differences play a role, the trial judge may have a different perception of the objective criteria to the litigating parties. In this case, Mother 1 placed a heavy emphasis on her integration with Yuan's family. Although this may have been a critical factor for her and others in the Yuan family to the nature of the relationship, the holistic assessment of the judge minimized its importance. Multicultural couples have this added layer of complexity to unravel; will the Canadian courts recognize their culture's perceptions of spousal relationships?
Equally contentious is whether a spousal relationship had been terminated prior to the decedent's passing. Even in a simple case of a nuclear common-law family, the surviving partner's status as a spouse can be questioned. In Knelsen Estate, 2020 BCSC 134, the mother of the deceased petitioned the court to declare her son's common-law spouse of 12 years terminated under s.2(2)(b) WESA. The decedent's suicide was largely attributable to discovering his wife's infidelity and their subsequent breakup. Despite evidence of separation from tax filings, the spouse's new official boyfriend, and having their children informed of their separation, the trial judge found that both partners' separate statements of love prior to death allowed the possibility of reconciliation. The judge ruled that neither party had a clear intention to end the common-law marriage, as both seemed to have pondered reconciliation. Without either party's intention to terminate the relationship, s.2(2)(b) was not triggered and the Knelsen's spouse could inherit from the estate.
Even testamentary estates may be subject to spousal litigation. Under section 60 of the WESA, a surviving spouse may petition the court for an adequate provision when their partner does adequately provide for them in a will. In Lee v. Chau Estate 2021 BCCA 474, a clearly separated spouse attempted to vary the will of her estranged husband by claiming that they had never formally ended their marriage. She claimed that there was no clear date of separation in this case, and thus she should be recognized as the deceased's spouse and entitled to a provision in the will. The Court of Appeal affirmed that there is no need for a precise date of separation; the spouses had obviously separated for more than a decade. The decedent was entitled to write her out of his will.
These cases demonstrate the increasing trend of litigation for spousal status in intestate successions. The holistic test for the creation and termination of a spousal relationship opens up many opportunities for both potential spouses and inheriting heirs. In fluid or tumultuous marriage-like relationships, the trial judge's evaluation of the subjective and objective evidence will determine the relationship status and the potential spouse's ability to inherit. As more cases reach BC courts, the parameters of marriage-like relationships and their termination will become less ambiguous. In the cases to date, courts have tended to rule in line with the decedent's perceived intentions in the relationship. Further case law will determine whether this trend can be broken.
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