Background

Section 60 of British Columbia’s Wills, Estates and Succession Act, [SBC 2009] Chapter 13 (the “Act”) gives legal entitlement to a will-maker’s ‘spouse’ to apply to vary that will-maker’s will.

A potential claimant may wish to pursue such claim if he or she has been left out of a will entirely, or left an amount perceived to be unjust or inequitable. The Court will vary a will if, in their opinion, the will does not make adequate provision for the proper maintenance and support of the prospective claimant.   

Part 1 of this topical series dealt with whether or not prospective wills variation claimants meet the definition of ‘child’ under the Act, see this article.  Whether one meets the definition of ‘spouse’ under the Act is arguably a more complex discussion.

The Statute

While most people intuitively know that ‘spouse’ refers to persons who are married, the definition of marriage is broader than what may be anticipated. Section 2 under Part 2, Division 1 of the Act states that:

“2 persons are spouses of each other for the purposes of this Act if…:

  1. they were married to each other; or
  2. they had lived with each other in a marriage-like relationship for at least 2 years.”

Reference to being ‘married’ at subsection a) refers to couples who have gone through the formal process in British Columbia to obtain a certificate of marriage. This requires, amongst other things, a prospective spouse to apply and obtain a marriage license and then for the couple to wed through an ‘officiant’, who is either a religious representative or a marriage commissioner. Many people may consider this process marriage in the more traditional sense.   

Reference to a spouse under a “marriage-like relationship” at subsection b) is what most people consider spouses at common-law. But how does one end up in a common-law relationship? In accordance with the language of the Act, spouses in this regard must have lived with each other, for at least two years, in a “marriage-like relationship”, which begs the logical next question of… but what does that mean?

Case Law

To answer this question one must look to case law on the topic. Molodowich v Penttinen has been referred to by the BC Supreme Court to be the leading authority on this issue. In Molodowich the court listed factors to be considered when determining whether or not a “marriage-like” relationship exists. Broadly speaking, the Court is guided by:

  • Whether the parties were living together;
  • Personal and sexual interactions between the parties;
  • Services provided to each other by the parties;
  • How the parties presented themselves in social settings;
  • How the community perceives the parties;
  • Economic support/integration between the parties; and
  • The attitude and conduct of the parties regarding children.

It is worth noting that no single factor is definitive.

There is no bright line rule whereby a person either is, or is not, in a “marriage-like” relationship. Rather it is a facts driven analysis guided by a non-exhaustive list of factors which vests considerable discretion in the judge. As a general rule the greater the public and private integration of the lives of the parties, the more likely it is that they would be deemed to be in a “marriage-like” relationship.

A “marriage-like” relationship will be terminated in the event that either party terminates the relationship between the two parties. However, there is a statutory modification to this. Termination is deemed not to have occurred if, within one year of separation the parties begin living together again for the primary purpose of reconciliation, and they live together for a period of more than 90 days in that same one year period.

It should be mentioned that it is also possible to have two or more spouses. Where the appropriate legal requirements are met, a party may be deemed a spouse, regardless of what other relationships they are in at the time. Furthermore, in Austin v Goerz the British Columbia Court of Appeal clarified that a “marriage-like” relationship can exist even where one or both parties lack the capacity to enter into a marriage. This makes the definition of spouse much broader than simply married couples, and recognises the importance of protecting the interests of people in non-traditional relationships.   

Conclusion

These laws apply equally to opposite sex and same sex relationships.

So as to the question of whether you are a ‘spouse’ as contemplated under WESA, with a right to apply to vary a late spouse’s will…the answer is maybe.

If you wish to discuss your position under WESA, or feel you have reason to vary the will of a recently deceased parent or spouse, please contact one of our professionals at Hobbs Giroday, (604) 669-6609. 

*this author graciously thanks Hobbs Giroday summer student Luke Elliott for his contribution to this article.