Canadian court considers common-law relationship status in inheritance case

Tuesday, 28 June 2022
The British Columbia Court of Appeal (the Appeal Court) has dismissed a woman’s claim against the estate of her partner, after finding that she did not qualify as his common-law spouse under the Estate Administration Act 1996 (the Act).
House divide

Tracey Davidson obtained a grant of letters of administration for the estate of Larry Jones (the deceased) shortly after his death in 2014, making a statutory declaration that she was his common-law spouse under the Act. This was contested by the deceased’s only child, Eric Jones, who agreed that Davidson and the deceased were in a common-law relationship but that it was not sufficient for Davidson to qualify as a common-law spouse. The Supreme Court of British Columbia (the Supreme Court) agreed with Jones and revoked the letters of administration.

Davidson appealed the decision, arguing that the judge “erred in law by failing to consider, misconstruing, or misapprehending, evidence of the nature, duration and permanence of her relationship with Mr. Jones [and]…did not consider the evidence in its totality by failing to consider with a modern lens the entire picture of the relationship”.

Both the Supreme Court and the Appeal Court considered the case in light of the of the Act’s definition of “common-law spouse”. The Act holds that a common-law spouse is either “a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law”, or “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death”.

The Supreme Court did not find that the two-year period of time had been met, ruling that Davidson and the deceased did not act as common-law spouses before April 2013.

The Appeal Court therefore considered the nature of the relationship in the two years before the deceased’s death, from March 2012 to March 2014, using existing case law to balance the concepts of cohabitation and marriage-like relationships and acknowledging that “there is no checklist of characteristics that will invariably be found in all marriages”.

The judge found that the Davidson’s evidence fell short of proving a marriage‑like relationship in 2012. “The indicia point strongly to a developing romantic and caring relationship with expectations developing through the pertinent period, but not, in my view, to the creation, yet, of a relationship we would recognize as marriage‑like” she said. “The reality is that in each of these indicia there is too much space between the parties to cumulatively produce cohabitation or a marriage‑like relationship before the critical March 2012 date.”

The Appeal Court therefore upheld the decision of the Supreme Court and dismissed Davidson’s appeal (Jones v Davidson, 2022 BCCA 31).


The content displayed here is subject to our disclaimer. Read more