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Defining a “Spouse”: More than just a checklist: Robledano v Jacinto

Robledano v Jacinto, 2018 BCSC 152 (CanLII), http://canlii.ca/t/hq4wt 

Spousal relationships take many forms and defining such relationships requires more than a prescribed checklist.  Justice Fleming’s decision in Robledano v. Jacinto, 2018 BCSC 152 (CanLII), discusses the flexible approach required to determine whether a relationship can be characterized as “spousal” in the context of British Columbia’s Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

Robledano involved an action brought by a testator’s same-sex partner, seeking a declaration that the available copy of the testator’s Will, was in solemn form and valid. In the alternative, she asked the court to find that she was the testator’s surviving spouse within the meaning of s. 2 of WESA.

The defendants, who were the testator’s siblings and brother-in-law, denied that the testator and the plaintiff were spouses at the time of her death.

Facts:

The testator and the plaintiff began living together in 1985.  There was a break in their romantic relationship between 2000 and 2005.  They began living together again in 2005.   In 2010 they went through what Justice Fleming described as a crisis period but maintained some form of a relationship until they reconciled in late 2011.

Throughout the years they continued to be a significant part of each other’s lives even during the times that they were not romantically involved.  The plaintiff provided a great deal of support to the testator throughout their relationship.  She regularly cooked and cleaned for her, provided emotional support, and performed various administrative tasks.

The testator executed a Will in July of 2011, designating her partner as the sole beneficiary.  The testator’s brother-in-law was named as the executor and her sister as the alternate.

The Will was prepared by a lawyer and validly executed.  It included a formally executed memorandum, which included a provision that notwithstanding the nomination of her bother-in-law and sister as the beneficiaries of two separate insurance policies, she directs those beneficiaries to respect her wishes and transfer the proceeds from the policies to her long-time friend (the plaintiff).

The testator was provided with the original executed Will which she reportedly placed in a safety deposit box.    She passed away unexpectedly in April of 2014.

The executor obtained a copy of the Will sometime after death. The original Will, however, was never found.  The executor therefore took the position that the deceased died without a Will.  The testator’s wishes as set out in the memorandum were ignored.

Presumption of Revocation:

The question of the presumption of revocation was only briefly addressed by the Court.  In light of the evidence, Justice Fleming was not convinced that the testator had destroyed the Will with the intention of removing the plaintiff from her Will.

Credibility of Witnesses:

Credibility was of crucial and central importance in this case.  After reviewing the approach set out in Faryna v. Chorny[1], and the factors set out in Bradshaw v. Stenner[2], regarding witness testimony, Justice Fleming found the plaintiff’s evidence reliable and the defendants’ evidence highly questionable.

“Marriage-Like” Relationship:

The Court noted that the leading authority on the definition of marriage is Molodowich v. Penttinen[3].  This decision lists seven components, each accompanied by questions which may “to varying degrees and combinations” describe a “cohabitation” relationship. The components include shelter, sexual and personal behaviour, services, social, societal, support (economic), and children.

Subsequent case law has emphasized that the presence or absence of any particular factor is not determinative of whether a relationship is marriage-like and a checklist approach is not appropriate, recognizing the variation and differences that exist in spousal relationships.

In making her decision, Justice Fleming followed the flexible approach set out in J.J.G. v. K.M.A. which found that “[t]he essential inquiry in such a case, is the existence of a marriage-like relationship; not the quality of that relationship”.[4]

Justice Fleming found that the plaintiff and the testator were spouses between 1985 to 2000, at which time they became involved with other individuals.  Until 2000 their relationship included many of the objective components or factors identified in Molodowich. They resided together full time, shared a bedroom and were sexually intimate. In 1996, they bought a home together, which they owned as joint tenants. They contributed equally to shared expenses, took holidays, attended family gatherings together, and socialized as a couple with friends.

The fact that the testator and the plaintiff kept their finances mostly separate and that they did not declare themselves to be in a common law relationship, did not detract from the marriage-like nature of their relationship.

The two women resumed and carried on a marriage like relationship again between 2005 to late 2010.   Although they were not sexually intimate, they lived together full time and shared a bed.  The relationship then endured a crisis from late 2010 to early 2012.  They then resumed their sexual relationship.

The evidence of their lifestyle, their interactions, and their expectations of one another established their intention to remain together for the long-term, or an “indeterminate duration”, as partners.

Justice Fleming concluded that the testator and the plaintiff “had a relationship that was very much spousal in its nature”.  Hence, the plaintiff was determined to be the testator’s surviving spouse within the meaning of WESA.  The Court additionally granted an order appointing the plaintiff as the administrator of her late spouse’s estate.

Takeaways:

Determining whether a relationship can be characterized as “marriage like” requires more than a checklist of factors.  It requires a flexible approach that takes into account the uniqueness and diversity of relationships.  This flexible view towards spousal relationships should be kept in mind during estate planning.

[1] Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at 357

[2] Bradshaw v. Stenner, 2010 BCSC 1398

[3] Molodowich v. Penttinen, (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.)

[4] J.J.G. v. K.M.A., 2009 BCSC 1056, para. 71

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