A recent British Columbia Court of Appeal decision examined whether two women were in a “marriage-like relationship” in an estate litigation case.
The testator died unexpectedly on April 14, 2014. She had executed a will in 2011 that designated her same-sex partner (the “partner”) as her sole beneficiary. The original will was not found after her death. Because the will had been in the testator’s custody, the judge applied the presumption of revocation and declared the testator to have died intestate.
Even without the will, the partner maintained that she was the sole beneficiary of the estate. She claimed that she was in a marriage-like relationship with the testator. As the testator had no children, this would result in the partner being entitled to the entirety of the estate under s. 20 of the Wills, Estates and Succession Act [the “WESA”].
One of the testator’s sisters (the “sister”) contended that while the partner had, at one time, been in a marriage-like relationship with the testator, their relationship had ceased to be marriage-like by the time she died. The sister argued that the partner was not a spouse under the WESA and that the estate should, therefore, be split among the testator’s six sisters and one brother.
The trial judge conducted a thorough analysis of the evidence and concluded that the relationship between the testator and the partner remained marriage-like at the time the testator died. The sister appealed.
The Couple’s History
The court reviewed the relationship between the testator and the partner.
They had met in 1982 and established a romantic relationship in 1983. They began cohabiting in 1985 and purchased a condominium together in 1996. However, in 2000, while the two women continued to share a condominium, they ceased to have intimate relations with each other and both became involved in relationships with men. Eventually they stopped living together.
However, in 2010, the testator and the partner began to see each other again and attempted to rebuild their relationship. That said, they never again lived together in the same residence on a full-time basis. While the women maintained separate bank accounts, they also shared a joint account.
In the appeal, both parties accepted that the testator and the partner lived with each other in a marriage-like relationship between 1985 and 2000, and again between 2005 and 2010. They also agreed that the two were not in a marriage‑like relationship during the time between those two periods.
The disagreement between the parties was over the characterization of the relationship between November 2010 and the testator’s death in April 2014. The sister contended that the women were neither living together nor in a marriage‑like relationship during that period, while the partner said that they remained in a marriage-like relationship and were living together, though not full‑time.
Section 20 of the WESA states:
Spouse but no descendants
20 If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.
The definition of “spouse” is provided in s. 2 of the WESA:
When a person is a spouse under this Act
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
(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.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
(a) they begin to live together again and the primary purpose for doing so is to reconcile, and
(b) they continue to live together for one or more periods, totalling at least 90 days.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
Court of Appeal Decision
Regarding the proper interpretation of s. 2 of the WESA, the court stated:
“Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage-like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.”
Additionally, despite a temporary separation, the couple had resumed their relationship. The court stated that while the statute sets out circumstances in which persons “cease being spouses” it does not imply that such a cessation will always be permanent. The court found that married spouses who reconcile after a separation will once again be spouses for the purposes of the WESA. As a result, the court stated that there was no reason to believe that unmarried spouses who, after a temporary termination of their relationship, reconcile and recommence living in a marriage-like relationship would not resume their status as spouses under the WESA.
As a result, the court found that there was no reason to interfere with the trial judge’s decision. While there were some pieces of evidence that suggested that the marriage-like relationship was terminated in late 2010, there were also strong indications that the relationship survived. The court therefore found that it was open to the trial judge to find, as she did, that the relationship survived and that it remained “marriage-like”.
The court dismissed the appeal.
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