Relationships come in all shapes and sizes and no two are exactly alike.
In British Columbia, as a result of the 2013 Family Law Act, the terms “marriage-like relationship” and “common-law relationship” have become bad words to some. This is because if you live in a marriage-like or common-law relationship for a period of 2 years or more, the property division provisions of the Family Law Act automatically apply to you.
After considering the Supreme Court of Canada’s comments, the court in Austin confirms that there is no checklist of required characteristics which make a “marriage-like”, “conjugal”, or “common-law” relationship. Specifically, the court of appeal notes that financial interdependence is not a necessary aspect of a “marriage-like” relationship but just one factor to consider.
The court cites a Saskatchewan case from 2003 in which Justice Ryan-Froslie states,
“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.” (Yakiwchuk v. Oaks, 2003 SKQB 124 at paragraph 10)
Financial interdependence is not a pre-requisite.
After considering the Supreme Court of Canada’s comments, the court in Austin confirms that there is no checklist of required characteristics which make a “marriage-like”, “conjugal”, or “common-law” relationship. Specifically, the court of appeal notes that financial interdependence is not a necessary aspect of a “marriage-like” relationship but just one factor to consider.
The court cites a Saskatchewan case from 2003 in which Justice Ryan-Froslie states,
“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.” (Yakiwchuk v. Oaks, 2003 SKQB 124 at paragraph 10)
Sharing a bed is not required.
Justice Ryan-Froslie continues,
“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.” (Yakiwchuk v. Oaks, 2003 SKQB 124 at paragraph 10)
In a 1980 Ontario Case, the court listed the following list of factors in 7 different categories to consider when making a determination about whether people are living in a “marriage-like”, “conjugal” or “common-law” relationship. They were as follows:
Intentions may be important, but objective evidence rules.
In the 2015 BC Court of Appeal case of Weber v. Leclerc, 2015 BCCA 492, the court indicated that the parties’ intentions and expectations regarding the length of a relationship may be important in determining whether a relationship is “marriage-like”. However, even if parties give evidence about their intentions, the court will ultimately look to objective evidence including the parties’ lifestyle and interactions with others to support or refute their intentions. In Weber, the Court of Appeal noted that checklists (like the one above) may be helpful in that they indicate what society sees as a marital relationship, but they cannot be applied blindly.
The burden of showing that parties are in a “marriage-like”, “conjugal”, or “common-law” relationship is on the person claiming to be in that relationship. In BC, for the purposes of division of property and most spousal support claims, the parties must have been in a “marriage-like”, “conjugal”, or “common-law” relationship for a period of 2 years.
In the recent case of Ashton v. Hales, 2017 BCSC 1928 Justice Punnett was required to decide when the parties began living together in a marriage-like relationship. Justice Punnett looked at when the relationship became more than a “boyfriend-girlfriend sexual relationship”. As evidence of this change, he considered that the parties traveled together with the girlfriend’s daughter to the girlfriend’s father’s funeral in Alberta. He also noted that they traveled together to pick up the girlfriend’s daughter from Kamloops and went camping for 3-4 days together. Justice Punnett also noted other trips the parties took together including skiing and camping trips, but was not certain when those took place.
Justice Punnett found that during the early part of the parties’ relationship, they did not present themselves to others a couple, both were employed, the girlfriend paid for and was responsible for her own residence and the boyfriend’s involvement in that residence was limited. The girlfriend did not socialize with the boyfriend’s family and did not attend the family Christmas dinner. Further indicators considered were that the parties’ financial lives remained completely separate with the exception of a payment by the girlfriend respecting the proposed purchase of a property.
Other than the trips noted above, the parties did not engage in any recreational activities together. There was no sharing of household responsibilities. Although the parties sexual relationship did continue throughout and the boyfriend’s motorcycle was stored at the girlfriend’s property, the remaining factors point to the parties not being in a marriage-like relationship.
At paragraph 62, Justice Punnett finds that the parties did not live together in a marriage-like relationship until a date later than the girlfriend was suggesting. He did so on the following basis:
Justice Punnett went on to find that the parties’ relationship did not change to a marriage-like relationship until the parties moved into the jointly purchased property, or shortly before when they purchased the property.