Whether two people were spouses is becoming an increasingly common issue in estate litigation in BC. The BC Court of Appeal decision in Jones v. Davidson, 2022 BCCA 31 is yet another example.
In this case, the Deceased, Larry Jones, died without a will on March 18, 2014. At the time of his death, he had been living together with a woman named Tracey Davidson. The two were not married. Larry died leaving one child, a son named Eric.
Shortly after Larry’s death, Tracey applied for a grant of letters of administration and, in so doing, swore a statutory declaration stating that she was Larry’s spouse. Eric challenged the issuance of a grant on the basis that Larry and Tracey had not been in a relationship long enough to qualify them as spouses at law.
The issue was important given that Larry died without a will. If Tracey was found to be his spouse, she would stand to inherit his Estate. Conversely, if she wasn’t, Eric would inherit
At trial, the Court agreed with Eric that Tracey was not Larry’s spouse. Tracey then appealed that decision to the Court of Appeal.
The Court of Appeal cited the applicable definition of spouse under the Estate Administration Act, which stated that:
“common law spouse” means either
(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or
(b) a person who has lived and cohabited with another person in a marriage-like relationship for a period of at least 2 years immediately before the other person’s death;
“spouse” includes a common law spouse;
The Court then addressed the evidence at trial. Tracey’s statutory declaration stated that she and Larry lived and cohabited together for roughly 3.5 years before his death. Following the testimony of several witnesses including Eric and Tracey, the trial judge had found that Tracey and Larry had been in a romantic relationship since February 2012, but did not have a marriage-like relationship until April 30, 2013; less than 2 years before his death. In coming to this conclusion, the trial judge found it important that:
- after April 30, 2013, Larry was listed as Tracey’s daughter’s step-father at the latter’s school.
- In October 2013, Larry added Tracey as his common law spouse on his health and life insurance policies.
- In early 2014, Tracey noted her marital status on her 2013 income taxes as common law.
On this basis, the trial judge found that Tracey had not established that she and Larry have been living together in a marriage-like relationship for 2 years prior to his death.
After canvassing the applicable law and the evidence presented at trial, the Court of Appeal determined it would not disturb the trial judge’s finding. Whether two people are spouses is a highly fact-specific determination requiring a judge to consider both subjective and objective evidence. In this case, the trial judge considered the intentions of Larry and Tracey, and numerous objective indicia of whether a spousal relationship exists as identified by previous cases. These include, but are not limited to:
- The blending of finances and property;
- Sexual relations;
- Sharing the same bed;
- Physical displays of affection;
- Doing activities including taking vacations and spending holidays together;
- Having children; and
- Presenting themselves publicly as a couple.