Who Gets Your Estate?

Ontario

Are you married or not? Are you living together with someone in a marriage like relationship?

In Ontario, you need to be married to be a spouse. In British Columbia, simply living together might be enough. However, in Ontario the term “spouse “ is not defined in the Succession Law Reform Act.

Be sure not to move to BC, if your status is not clear!

In all cases, know whether you are married, have a spouse and who is going to get your estate.

Here are some excepts from the British Columbia Court of Appeal dealing with these issues in Coad v. Lariviere 2022 BCCA 222:

“[127]   This Court recently considered the question of whether persons were in a marriage-like relationship in Jones v. Davidson2022 BCCA 31. The decision highlights the fact that there is no specific definition of whether a marriage-like relationship exists. The precise definitions of the past are no longer valid in our changing world. Such relationships are no longer defined by financial dependence, sexual relationships or the mingling of property and finances. The Court, at para. 21, affirmed the lack of a “checklist” approach, as succinctly set out in Austin v. Goerz2007 BCCA 586. In Austin, this Court said at para. 58:

[58]      It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks2003 SKQB 124:

[10]      Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property- in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input.

For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public.

Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish.

The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”.

Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Emphasis added by Frankel J.A.] [128]   As affirmed at para. 22 of Jones, this Court’s decision in Weber v. LeClerc2015 BCCA 492 at paras. 23–24, leave to appeal to SCC refused, 36812 (21 April 2016), is also instructive:

[23]      The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]      The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[129]   In Jones at para. 23, this Court also considered the decision of M. v. H.1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, in the context of what was referred to then as a “conjugal relationship”. It is important to note—particularly in light of the trial judge’s reasons, as discussed below—that the term “conjugal” has essentially the same meaning as “marriage-like”, and does not solely refer to sexual relations. As set out in M. v. H.:

[59]      Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. 

However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. 

In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

[Emphasis added.] [130]   In Jones, this Court concluded at para. 24:

[24]      The upshot of these cases, as explained in Austin and Weber, is that the characterization of a relationship as marriage‑like is contextual. It involves the subjective intentions of the parties and objective evidence, and the subjective intentions, where there is evidence of such, may be tested by reference to the objective evidence.

In turn, that objective evidence may address a wide assortment of characteristics or indicia for which there is no definitive classification system to determine the ultimate characterization of the relationship. That answer must be given by the judge, understanding the concept and fully considering the evidence.

[131]   Returning to the instant appeal, the trial judge reviewed the case law, including Weber. He set out a list of factors that he distilled from the law:

[191]   From these decisions, the factors that may be considered include:

(a) The parties’ intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration: Weber, para. 23.

(b) Objective evidence of the parties’ lifestyle and interactions supporting a finding that their interactions “closely resembled those typical of married couples”: Weber, paras. 24, 29.

(c) Whether the parties treat themselves as a family unit: Weber, para. 29.

(d) Whether cohabitation was coupled with romantic and sexual relations: Weber, para. 29Austin, para. 58.

(e) Evidence of emotional interdependence, mutual commitment, and attachment: Robledano, para. 60.

(f) Whether the parties co-mingled assets and shared expenses: Austin, para. 62.

(g) Whether the parties treated themselves as single or cohabiting for income tax purposes: Weber, para. 30.

[132]   The trial judge concluded at para. 198 that if Mr. Coad and Ms. Lariviere had been in a marriage-like relationship, it ended in 2006 when he did not allow her to return to his apartment after her accident. That conclusion is founded on the evidence.”

COMMENT

If in your case, the definition is difficult or puzzling, then seek the assistance of a lawyer specializing in estate planning to prefer the correct documents to evidence your intention.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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