By Daniel Paperny
In an unanimous May 2019 decision the BC Court of Appeal upheld a lower court's determination that an alleged couple were indeed "spouses" for the purpose of that province's
Wills Estates and Succession Act,
S.B.C. 2009, c. 13 (the "WESA").
The Court in Robledano v. Queano, 2019 BCCA 150 ("Robledano") applied a flexible and contemporary approach to the definition of "spouse" in arriving at its ruling that the plaintiff in this case did qualify as a spouse despite having shared an unconventional, albeit long-term, relationship with the Deceased. The ruling can be seen as a sign that Canadian courts are utilizing an adaptable methodology toward the definition of "spouse", an approach which accounts for the various forms that spousal relationships can take in today's world.
The Importance of the Definition of 'Spouse' in Estate Litigation
The definition of a 'spouse' is of crucial importance in the context of estate litigation proceedings. Whether a litigant is seeking to qualify as a 'dependant' for the purpose of bringing a dependant support claim against an estate under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA"); or claiming an intestate entitlement to a deceased's estate - a litigant's case often hinges on whether or not that person, on the facts, meets the legal definition of a 'spouse'.
In Ontario, Part V of the SLRA defines a "dependant", for the purpose of dependant support claims, as a spouse, parent, child or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide for. Section 57 of Part V further sets out that the definition of a "spouse" goes beyond a married couple and includes "two persons who are not married to each other and have cohabited for a period of not less than three years".
In British Columbia, the WESA also includes common law spouses in its definition of a spouse, noting that "two 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 two years".
These provisions clearly expand the class of people who may qualify as a "spouse" beyond married couples. However, in the context of estate litigation, it is rarely clear whether a litigant meets the definition of a common law "spouse" and the question often requires a judicial analysis of the facts of each individual relationship together with the relevant legislative provisions. In these cases, the court will delve into the minutiae of the impugned relationship, and come to a determination whether, on the facts, the couple meets the definition of "spouse" as laid out in the relevant legislation.
This was the case in the recent decision by the BC Court of Appeal ("BCCA") in Robledano, where the court was tasked with determining whether the plaintiff and the deceased shared a "marriage-like" relationship for the purposes of the WESA.
Ms. Barbara Jacinto, the Deceased, died unexpectedly in April of 2014. Prior to her death, Barbara had been in an on-again-off-again relationship with her same-sex partner, the Plaintiff Ms. Maria Robledano for over 30 years.
Barbara had executed a Last Will and Testament in 2011 naming Maria as the sole beneficiary of her Estate. However, Barbara's original Will could not be located after she died. The presumption of revocation applied, and Barbara was deemed to have died intestate without a will (this serves an important lesson for all of us to ensure that the original copies of our Wills are held in a secure location).
Maria claimed that even without a Will she remained the sole intestate beneficiary of Barbara's estate, on account of being Barbara's spouse. One of Barbara's sisters, the Defendant Ms. Queano, argued that while Maria and Barbara may have once been spouses, they had not been living in a marriage-like relationship for the two years immediately prior to Barbara's death (2012-2014), and therefore they did not meet the definition of "spouse" as per the WESA.
The Impugned Relationship
Maria and Barbara became romantic in 1983 after meeting in the Philippines where they both resided. They moved to British Columbia together in 1988 where they eventually settled in Burnaby, purchased a property and lived together for the next decade in a manner that the trial judge defined as "like a traditional marriage".
However, Barbara and Maria's relationship changed drastically around the year 2000 when the couple split up, and both began seeing male partners in long-term romantic heterosexual relationships. Barbara even purchased a home with her male partner and discussed marrying him before he died in 2004.
In or around 2005, Maria and Barbara moved back in together and rekindled their romantic relationship. However, in 2010 the couple again split up after their relationship reached a "breaking point" which resulted in Maria leaving Barbara and beginning a romantic relationship with another woman that continued until December 2011.
By 2011, Maria and Barbara began to see each other again and tried to rebuild their relationship. They never again lived in the same residence, they did not intermingle their finances, however they maintained a close and regular relationship from 2011 until Barbara died in 2014, during which time they saw each other on a weekly basis.
Ms. Queano argued that the events of 2010 constituted a termination of any marriage-like relationship which Barbara and Maria may have once shared, while Maria contended that they remained in a spousal relationship up until Barbara's death, despite not living together full-time from 2011 - 2014.
The Court of Appeal noted that the definition of "spouse" as set out in the WESA provides an "imprecise and flexible legal standard" which the court must apply to the facts of a given case. Ultimately, the determination of whether the spousal relationship was terminated is a "judgement call" for the court in applying the broad legal standard to the factual circumstances of a given case.
The Court of Appeal ultimately upheld the trial judge's ruling that just because Maria and Barbara did not live under the same roof or intermingle their finances from 2011-2014, this did not necessarily mean they were not spouses. In this case, the details of their shared lifestyle, their interactions and expectations of one another was "very much spousal in nature". The Court confirmed that Maria was indeed Barbara's surviving spouse and therefore entitled to inherit Barbara's estate on an intestacy.
The BC court also confirmed that the seven factors (listed below) that are set out in the Ontario Superior Court's decision in Molodowich v Penttinen (1980), 1980 CanLII 1537 (ONSC) continue to be a leading authority in determining whether a couple were living in a spousal relationship. None of these factors are conclusive on their own, however, taken together they may assist a court in determining whether a couple "cohabited" in a "marriage-like" relationship for the purpose of the relevant legislation:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) 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?
(g) Did they buy gifts for each other on special occasions?
(3) Services: What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(d) Household maintenance,
(e) Any other domestic services?
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) Societal: What was the attitude and conduct of the community towards 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 towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children: What was the attitude and conduct of the parties concerning children?
The BCCA's decision in Robledano is indicative of a general trend in Canadian jurisprudence toward a broadening of the types of relationships which courts will consider to be spousal relationships for the purpose of relevant legislation.
Courts take a flexible and nuanced approach in determining whether a couple are indeed spouses, as they apply the "imprecise" definitions contained in the pertinent legislation to the specific facts of each relationship. While the factors which courts may consider in determining whether a litigant qualifies as a "spouse" may be the same factors which courts applied in the 1980s (see: Molodowich), the types of relationships which courts will now accept as spousal relationships are broadened as the judiciary adapts to contemporary societal norms and expectations surrounding spousal bonds.