Canada: Ending The "Marriage-Like" Relationship?

In a recent decision, Mother 1 v. Solus Trust Company, 2019 BCSC 200, Justice Myers questioned the relevance of the term "marriage-like relationship", a central issue in many estates and family cases.

The case involved a claim by "Mother 1", the mother of one of the children of the deceased, Yuan, who died without a will. She said she was Yuan's "spouse" under the Wills, Estates and Succession Act, such that she was entitled to the majority of his estate valued at between $7,000,000 and $21,000,000. As the two had not been legally married, Mother 1 had to prove that she and Yuan had lived in a "marriage-like relationship" for at least two years before his death.

A Unique Relationship

The facts were "unusual, if not unique". Yuan's relationship with Mother 1 was partly concurrent with his relationships with the other four mothers of his children, and for the last eight months of his life, Yuan did not see Mother 1. The mothers mostly had no knowledge of each other or the other children until after Yuan's death.

The judge reviewed the evidence regarding Yuan's relationships with the mothers . Briefly, Yuan had been in a relationship before Mother 1 before marrying another woman in order to emigrate to Canada. He later divorced, and he and Mother 1 had a child together. At the same time, however, Yuan commenced and continued relationships with other women, including four with whom he had children.

Ending the "Marriage-Like" Relationship

Justice Myers considered the definition "spouse", in particular, the requirement that the persons lived with each other in a marriage-like relationship for at least 2 years prior to the death of the deceased. The judge then turned to the meaning of a "marriage-like relationship". The concept is flexible: spousal relationships are varied, and people structure their relationships differently. While the "Molodowich" factors are used to determine whether a relationship is "marriage-like", there is no checklist of factors, and the parties' subjective intentions must be analyzed with reference to certain objective factors.

Justice Myers then "digress[ed] to point out the problematic nature of the concept":

[143] ... It may be apparent from the above that determining whether a marriage-like relationship exists sometimes seems like sand running through one's fingers. Simply put, a marriage-like relationship is akin to a marriage without the formality of a marriage. But as the cases mentioned above have noted, people treat their marriages differently and have different conceptions of what marriage entails.

He went on to review some of the academic commentary regarding the difficulty associated with identifying marriage-like relationships before concluding:

[148]   ...Marriage now being so multifarious, one cannot help but wonder if the concept of a marriage-like relationship has outlived its utility.  An estate or family trial ought not to be an exercise in sociology in which leaps of judicial notice are often made.  That, of course, is a matter for the legislature and WESA is to be applied according to its terms.

A Non-Spousal Relationship

Justice Myers concluded that Mother 1 and Yuan had not been in a marriage-like relationship at the relevant time. While the case was not a contest between Mother 1 and the other mothers, Yuan's other relationships affected Mother 1's credibility and reliability and showed his attitude towards the relationship. In addition, Mother 1's evidence was limited and vague, with much of it focusing on her relationship with Yuan's parents rather than with Yuan. Also, even if they had referred to each other as husband and wife, Yuan had done the same with two other mothers. In addition, there was no evidence of joint bank accounts or property, and the evidence of financial support was unclear. Moreover, while Yuan gave Mother 1 gifts, he did so for some of the other mothers too, whom he had also taken on trips (something he did not do for Mother 1). Finally, this was not a case of someone having an affair or a couple entering into an open relationship; Yuan carried on his relationships surreptitiously, and his conduct showed that he had no commitment to or long term relationship with Mother 1. "To hold otherwise would be to expand the concept of a marriage-like relationship to such an extent that it would be rendered meaningless."

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