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.
But what is a “marriage-like relationship” or “common-law relationship?”
The leading case on this matter is Austin v. Goerz, 2007 BCCA 586 in which the BC Court of Appeal reviewed how the law has historically defined “marriage-like relationships” and “common-law relationships”.
In Ontario, their Family Law Act has long given certain rights to those who are not married, but live in a “conjugal relationship”. In 1999, the Supreme Court of Canada considered what constitutes a “conjugal” (or marriage-like) relationship. The court listed factors which ought to be considered in determining whether two people are in a marriage-like relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the perception of the couple by the outside world.
The Supreme Court of Canada recognized that all relationships are different and that the listed factors may be present in different degrees for different couples. Not all factors are required and no single factor is more important than the others. Aptly put “in order to come within the definition, neither opposite-sex nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is ‘conjugal’ [or marriage-like]” (M v. H, [1999] 2 SCR 3 at paragraph 59).
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:
- Shelter. Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?
- Sexual and Personal Behaviour. Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings toward each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?
- Services. What was the conduct and habit of the parties in relation to the preparation of meals, washing and mending clothes, shopping, household maintenance, and other domestic services?
- Social. Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of each of them towards members of their respective families and how did such families behave towards the parties?
- Societal. What was the attitude and conduct of the community towards each of them as a couple?
- Support (Economic). What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? What were the arrangements concerning the acquisition and ownership of property?
- Children. What was the attitude and conduct of the parties concerning children?
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.
Recent Case.
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:
- The girlfriend was inconsistent with the dates she was alleging the relationship became marriage-like;
- In three years (over which the girlfriend alleged the parties’ relationship was marriage-like) the parties filed their tax returns as single;
- The girlfriend’s son and stepson who resided with her could not say when the parties began living together;
- The boyfriend and his brother both testified that the boyfriend was living in another residence until a later date;
- The boyfriend testified that he moved into the girlfriend’s home 6-8 months prior to the purchase of their joint property; and
- The boyfriend’s work schedule indicates that the cohabitation occurred at a later date.
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.
