This article is the first in a series about the intersection of family law and estate planning. In further articles the writer will set out several available planning options to help realize a client’s goals and intentions with respect to family law planning, wealth management and estate planning.
Who is my spouse anyway?
The answer to this question is not always clear and often requires an analysis of the relevant facts. The Courts generally employ a flexible approach and consider the diversity of relationships.
Before getting into the details of when two people are considered spouses, you may wonder about the consequences of inadvertently being in a marriage-like relationship.
Why does it matter?
From a family law perspective, it matters because subject to an agreement or order that provides otherwise, spouses are both entitled to family property and responsible for family debt regardless of their respective use or contribution (s. 56 of the FLA). In simple terms, this means that on separation there is a presumption that family property and family debt will be divided equally between spouses.
This may result in a division of property that is entirely contradictory to a person’s wishes.
From an estate planning perspective, it matters because the case law has established that a will-maker has a legal and moral obligation to provide for their spouse and for their children. If a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-makers’ estate for the spouse of children (s. 60 of the WESA). In short, a court may vary a will-maker’s will if adequate provision has not been made for the will-maker’s spouse and children.
The bottom line – it is important to know when you are considered to have a spouse and plan accordingly.
The Definition of a Spouse
In British Columbia, there are two statutes (for the purpose of this article) that should be considered when answering the question of whether someone has a “spouse” – the Family Law Act, SBC 2011, c 25 (the “FLA”) and the Wills Estates and Succession Act, SBC 2000, c 13 (the “WESA”). The Courts have also weighed in by creating a multi-faceted framework to determine whether two people are spouses.
The WESA defines a spouse as follows:
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 in a marriage like relationship for at least 2 years.
…
Similarly, the FLA defines a spouse as follows:
Spouses and relationships between spouses
3(1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Part 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2) A spouse includes a former spouse
(3) A relationship between spouses begins on the earlier of the following
(a) the date on which they began to live together in a marriage like relationship;
(b) the date of their marriage.
…
As you can see from the above definitions, both statutes define a spouse as a person who has lived with another person a marriage-like relationship for at least two years.
What is a marriage-like relationship?
In defining a marriage like relationship, the Courts have consistently relied on a case called Molodowich v Penttinen, (1980), 17 RFL (2d) 376 (Ont. Dist Ct.) (“Molodowich”). In Molodowich, the Court identified several factors which were indicative of whether parties live in a marriage-like relationship. The factors include: (1) Shelter; (2) Sexual and Personal Behaviour; (3) Services; (4) Social; (5) Societal; (6) Support (economic); and (7) Children. Under each of these factors the Courts ask various questions. For example, with respect to shelter the courts may consider whether the parties lived under the same roof and if so, whether the parties shared a bedroom.
The above factors are not meant to be a checklist but are considered together by the court to give effect to the subjective intention of the parties and the objective behaviour of the parties. The Courts have found that the analysis is fact specific and must be made on a comprehensive basis, having regard to all of the evidence.
There have been several cases since Molodowich that further support the position that no one factor is determinative and the relationship must be considered broadly and holistically.
For example, in the 2018 case of Robledano and Jacinto, 2018 BCSC 152, one of the parties sought a declaration that she was the will-maker’s surviving spouse. The parties lived together on and off for 20 years. However, at the time of the will-makers death the parties were not sexually active and they were not consistently living in the same residence. The Court concluded that it was not fatal to the plaintiff’s claim that the parties did not consistently live together and justified the couple’s unusual living arrangements. The parties were found to be spouses under the definition in the WESA.
Take Away
In summary, spousal relationships are varied and structured differently. There is not one factor that sufficiently describes a marriage-like relationship so individuals must consider their circumstances and assess whether they could have a spouse.
If a person is seeking to protect their assets and have greater certainty from a family law or estate planning perspective we suggest that you speak to a lawyer regarding the most effective planning options.
