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How to Prove a Common Law Relationship in BC | Family Law

January 24, 2018     Family Law

How to prove a common-law relationship in BC depends on many factors which a judge will consider as a whole. Believe it or not, you do not even need to live under the same roof to be considered common law. Our common law lawyers know that financial, emotional, physical and life dependencies all come to play when considering whether you were in a common-law relationship or not.

If you want to know how to prove you are NOT in a common-law relationship, click here.

Let’s first look at the minimum requirements to be considered common law in BC:

Common-Law Relationships in BC

Rights under common-law relationships are governed by the BC Family Law Act. This act states that you could be considered common law if:

  1. You lived with your spouse in a marriage-like relationship (you must read about marriage like relationships below); 
  2. For a continuous period of at least two years; OR
  3. You lived together for less than 2 years but had a child together. 

If you meet the above criteria, you are considered a spouse under the Family Law Act. If you are considered a spouse, then you get a whole bunch of rights such as child support, spousal support, property and debt division.

The difficulty in proving a common-law relationship however lies in the marriage-like aspect of it. You need to prove a marriage-like relationship for at least two years. Let’s look at what marriage-like means.

How to Prove a Marriage Like Relationship in BC

A marriage-like relationship is not the same as dating. It means you and your ex were basically living like you were married to one another. But relationships come in many different shapes or forms so it is not a one size fit all. Factors that a court will consider in assessing whether you were in a marriage-like relationship are listed below. You do not need to meet every factor. Your case will be considered as a whole. In some cases even if you didn’t live under the same roof or if you didn’t have sex for several years, you could still be considered common law: 

Factors that Prove Common Law Relationships in BC

SHELTER:

(a)        Did you live under the same roof?

(b)        What were the sleeping arrangements?

(c)        Did anyone else occupy or share the available accommodation?

SEXUAL AND PERSONAL BEHAVIOUR:

(a)        Did you have sexual relations? If not, why not?

(b)        Did you maintain an attitude of fidelity to each other?

(c)        What were your feelings toward each other?

(d)        Did you communicate on a personal level?

(e)        Did you eat meals together?

(f)         What, if anything, did you do to assist each other with problems or during illness?

(g)        Did you buy gifts for each other on special occasions?

SERVICES:

What was your conduct and habits in relation to:

(a)        Preparation of meals,

(b)        Washing and mending clothes,

(c)        Shopping,

(d)        Household maintenance,

(e)        Any other domestic services?

SOCIAL:

(a)        Did you participate together or separately in neighbourhood and community activities?

(b)        What was your relationship and conduct towards members of their respective families?

SOCIETAL:

What was the attitude and conduct of the community towards you and as a couple?

SUPPORT (ECONOMIC):

(a)        What were the financial arrangements regarding food, clothing, shelter, recreation, etc.?

(b)        What were the arrangements concerning the acquisition and ownership of property?

(c)        Was there any special financial arrangement between you that both agreed on?

CHILDREN:

What was the attitude and conduct of the parties concerning children?

Evidence Proving Common Law Relationships in BC

As a common-law lawyer, I usually ask my clients to provide me with the following evidence if I want to prove that my client was in a marriage-like relationship:

  1. Tax Returns: did you list yourself as common law or single?
  2. PicturesFacebook posts or pictures showing taking trips together, attending special events together, etc.
  3. ReferenceDid you call each other ‘husband’ or ‘wife’ on Facebook, social media or to others?
  4. Joint AccountsDid you have an account from which your expenses were paid? Do you have a copy of a cheque that lists both your names on the account?
  5. Phone recordsDid you call each other every day?
  6. TextsWhat did you refer to each other in texts? husband? wife? partner? etc.
  7. IllnessesEvidence of you taking care of your spouse during illnesses or times off from work
  8. Financial contributionlist or pictures of gifts, paying for food, paying for groceries, etc.
  9. PetsDid you have pets together? Did you purchase them together?
  10. BillsWere the bills addressed to both of you? Did your bills come to your spouse’s home?
  11. Rental contractsAny contracts showing that you both leased, rented or purchased a place tighter. Did your spouse pay for your rent or lease even though you didn’t live together?
  12. CarsDid he buy you a car or gift it to you? Do you have the papers? Did you buy a car together? Are both your names on it?
  13. SexAny texts regarding sex? Any trips to the sex store to buy toys? How often did you have sex? etc.

A Judge’s View on What Common Law Relationships Are:

Perhaps the most beautiful and thought-provoking commentary by a judge on common-law relationships is found in the case of Connor Estate, by Honourable Justice Kent (one of my favourite judges).

In this case, Ms. Connor who was a criminal defence lawyer began a relationship with a man during his marriage. They had an affair for several years. He, Mr. Chambers, then divorced his wife and continued a relationship with Ms. Connor who was initially his sexual partner. They never lived in the same house because she became a hoarder and Mr. Chambers could not live with her. She paid for their trips but they never had a joint account. Prior to her death, she made Mr. Chambers the beneficiary of her RRSPs which were worth over $410,000. They took many trips together and referred to each other as husband and wife. They declared themselves as ‘single’ in their tax returns.

The judge found that during the time she was married to her husband and after her separation, Ms. Connor was in a marriage-like relationship. He made the following comments:

[46]        The respondents do not deny that there was a long-standing relationship of some sort between Mr. Chambers and Ms. Connor.  They submit, however, that it was simply a long-standing “affair” which did not amount to a “marriage-like relationship” and particularly so in the two-year period immediately preceding the death of Ms. Connor.  In that regard they point out:

  •  the parties maintained two entirely separate residences and did not live under the same roof;
  •  each undertook their own separate domestic tasks such as meal preparation, shopping, tending to clothing and household maintenance;
  •  no mingling of finances occurred;
  •  sexual relations between them in their respective households were significantly reduced in the last two years;
  • Ms. Connor’s hospital records identified her marital status as single and indicated Mr. Chambers as an alternative contact identifying him as a “friend”;
  • Ms. Connor identified herself as “single” on her tax returns and Mr. Chambers identified himself as “separated” after 2012;
  • Mr. Chambers identified his wife as his “current spouse” in the spousal declaration for his municipal pension plan application in September 2011, a designation that was never changed;
  • in August 2013 Mr. Chambers declared for the purposes of his group benefits with Manulife Financial that he had no common-law spouse and he did not declare Ms. Connor as a beneficiary;
  • Mr. Chambers’ children had no involvement in the life of Ms. Connor and indeed the son was never even introduced to her; and
  • neither Mr. Chambers nor Ms. Connor displayed photographs of each other in their respective residences.

[47]        I agree that not all of the Molodowich factors existed in the relationship between Mr. Chambers and Ms. Connor.  The fact that they did not live under the same roof and that they each kept separate finances might, without more, militate against a finding of a “marriage-like relationship”.  But the Molodowich factors are not a checklist and it is not necessary for each “box” to be ticked before a marriage-like relationship can be found to exist.

[48]        The parties provided a wide variety of cases as examples of circumstances where a marriage-like relationship was found to exist or not exist, as the case may be, and each devoted some effort to raise factual points of distinction in their favour.  However, while much guidance might be found in this case law, the simple fact is that no two cases are identical (and indeed they usually vary widely) and it is the assessment of evidence as a whole in this particular case which matters

[50]        The evidence is overwhelming and I find as a fact that Mr. Chambers and Ms. Connor loved and cared deeply about each other, and that they had a loving and intimate relationship for over 20 years that was far more than mere friendship or even so-called “friendship with benefits”.  I accept Mr. Chambers’ evidence that he would have liked to share a home with Ms. Connor after the separation from his wife, but was unable to do so because of Ms. Connor’s hoarding illness.  The evidence amply supports, and I find as a fact, that Mr. Chambers and Ms. Connor loved each other, were faithful to each other, communicated with each other almost every day when they were not together, considered themselves to be (and presented themselves to be) “husband and wife” and were accepted by all who knew them as a couple.

[51]        As a result of, and as part of, their relationship, Ms. Connor assisted Mr. Chambers financially and intended to bestow upon him the benefits of both her financial resources while alive and her estate upon her death.  Designating Mr. Chambers as the beneficiary of her RRSP speaks volumes.  While the evidence on this point is perhaps thin, I find it more probable than not that Ms. Connor actually executed a will leaving most of her estate to Mr. Chambers, a will that simply has not been found.  Certainly, I find as a fact that such was her intent, and it was an intent based on Mr. Chambers’ status as her romantic and life partner.

[52]        The evidence is clear that the relationship between Mr. Chambers and Ms. Connor was of lengthy duration and was of great importance to both of them.  They both intended for it to continue following her retirement, at which time they intended to spend their time together, and provide ongoing mutual emotional and intimate support, albeit maintaining separate residences should Ms. Connor not have been able to overcome her hoarding challenges.

[53]        Like human beings themselves, marriage-like relationships can come in many and various shapes.  In this particular case, I have no doubt that such a relationship existed between Mr. Chambers and Ms. Connor for many years and that it continued to exist right up to the date of her untimely death in January 2015.  I therefore declare that at the time of her death, Mr. Chambers was the “spouse” of Ms. Connor within the meaning of s. 2 of WESA.

To learn how to prove you are NOT in a common-law relationship, click here.

As Justice Kent says, relationships come in many different shapes or forms. If you believe you were in a common-law relationship and your spouse denies it, you need to at least set up an initial consultation with a common-law lawyer to find out your chances of winning or losing. Contact our award-winning family lawyers at 604-974-9529 or get in touch to find out more. 

 

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