Common Law Relationships in BC

The Supreme Court of British Columbia in the case of JJG v. KMA 2009 BCSC 1056 set out the legal principles in assessing whether or not persons were in a marriage like relationship/common law relationship:

[31] The court has recognized the difficulty of examining a relationship after its dissolution in order to determine whether it had the characteristics of a marriage: Ford v. Werden 1996 CanLII 1210 (BC CA), (1996), 27 B.C.L.R. (3d) 169 (C.A.).

[32] The starting point for the analysis is the legal test articulated in Gostlin at 268:

… If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been ‘Yes’, then they are living together as husband and wife. If the answer would have been ‘No’, then they may be living together, but not as husband and wife.

Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment. Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

[33] The Court of Appeal in Austin v. Goerz,2007 BCCA 586 (CanLII), 2007 BCCA 586, clearly articulated that some level of financial dependence is not a necessary component of a “marriage-like” relationship. As the trial judge in Austin observed, such a principle would be untenable in the context of modern society’s marriages and relationships. How the parties arrange their financial affairs is but one factor to be considered in the analysis of whether a relationship is “marriage-like”. Likewise, shared shelter, sexual and personal behaviour, services, social activities, and social perception of the couple, as described in Molodowich v. Penttinen reflex, (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), are factors to be considered.

[34] In modern society, however, there is no “checklist of characteristics” that will be found in all marriages or “spousal-equivalent” relationships: Austin. Rather, in undertaking the analysis of what constitutes a marriage-like relationship, the court should take a broad view in order to reflect the diversity of spousal relationships that exist in modern society.

[35] The focus of the inquiry is on the parties’ intention to live as “husband and wife” or in a “marriage-like” relationship as“divined” from an objective overview of the facts. The comments of the majority decision in Takacs v. Gallo 1998 CanLII 6429 (BC CA), (1998), 157 D.L.R. (4th) 623 (B.C.C.A.) at para. 53, are instructive:

[53] … By the same token, of course, subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such.

[36] The Court states at para. 55 that, while objective factors will be relevant to determining the intention of the parties, those factors will rarely be determinative in and of themselves.

[37] In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship.

[38] With respect to what constitutes a termination of a common-law relationship, Binnie J. in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (CanLII), 2004 SCC 65, cited with approval the observation of Morden J.A. in Re Sanderson and Russell (1979), 24 O.R. (2d) 249 (C.A.) at 432:

Subject to whatever provision may be made in a statute, a common law relationship ends “when either party regards it as being at an end, and by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.”

See also Gosbjorn v. Hadley,2008 BCSC 219 (CanLII), 2008 BCSC 219.

[39] In analyzing whether a couple has ceased living in a marriage-like relationship, the key factors include the absence of sexual relations, a clear statement by one of the parties of his or her intention to terminate the relationship, the physical separation of the parties into different rooms of the same house or different residences, and the cessation of the presentation to the outside world that they are a couple: Eisener v. Baker, 2007 BCSC 83 (CanLII), 2007 BCSC 83.

The legal determination of whether or not you were in a common law relationship is fact driven and each set of facts is unique in this determination. If you have questions about whether or not you were or are in a common law relationship, please contact our office to discuss this matter.