Can you separate from your common-law spouse without terminating the relationship? Apparently, according to the British Columbia Court of Appeal decision in Robledano v. Queano, 2019 BCCA 150.

Spousal status is often critical in estate disputes. A “spouse” as that term is defined in the Wills, Estates and Succession Act (“WESA”) may apply to vary her deceased’s spouse’s will. If there is no valid will, she will be entitled to a share of the estate on an intestacy (sometimes the entire estate). There is not surprisingly a great deal of litigation over the question of whether someone meets the definition of spouse.

Section 2 of WESA sets out the criteria for a spouse under the Act. I will leave out subsection (2.1) which is not necessary for this discussion.

2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a)they were married to each other, or

(b)they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a)in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b)in the case of a marriage-like relationship, one or both persons terminate the relationship.

….
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

The Family Law Act (the “FLA”) has similar, but as we shall see, not identical, criteria for determining when someone is a spouse. Section 3 provides:

3 (1) A person is a spouse for the purposes of this Act if the person

(a)is married to another person, or

(b)has lived with another person in a marriage-like relationship, and

(i)has done so for a continuous period of at least 2 years, or

(ii)except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2)A spouse includes a former spouse.

(3)A relationship between spouses begins on the earlier of the following:

(a)the date on which they began to live together in a marriage-like relationship;

(b)the date of their marriage.

(4) For the purposes of this Act,

(a) spouses may be separated despite continuing to live in the same residence, and

(b) the court may consider, as evidence of separation,

(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

Section 81 of the FLA deals with the rights of each spouse to property held by the other on separation. It reads:

81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],

(a)spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b)on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

The main issue in the Court of Appeal in Robledano was whether Maria Robledano was Barbara Jacinto’s spouse when Ms. Jacinto died on April 14, 2014. If so, because the court had found that Ms. Jacinto did not have a will, Ms. Robledano is entitled to the entire estate. If not, the estate goes to other relatives. In the Supreme Court of British Columbia, the trial judge found that Ms. Robledano was Ms. Jacinto’s spouse. One of Ms. Jacinto’s sisters, Milagros Queano, appealed.

Ms. Robledano and Ms. Jacinto were not married. The parties agreed that Ms. Robledano and Ms. Jacinto were in a marriage-like relationship from 1985 to 2000, and again from 2005 to 2010, but Ms. Queano argued that they were no longer in a marriage-like relationship after 2010. From November 2010, Ms. Robledano and Ms. Jacinto had separate residences, but Ms. Robledano maintained that they did continue to reside together part of the time.

The Court of Appeal held that the trial judge applied the correct legal tests and did not make any palpable and overriding error.

In his reasons for judgement, Mr. Justice Groberman held that it is not necessary for a couple who were in a marriage-like relationship to be in a marriage-like relationship at the time of death, as long as the relationship had not been “terminated.” Termination is not the same as separation, although separation is a factor that may be considered.

Mr. Justice Groberman wrote:

[39] Ms. Queano says an unmarried person can only be the spouse of a deceased person if they were living together at the time of death and for at least the two years immediately preceding it. In my view, that is not a correct interpretation of s. 2(1).

[40] Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage-like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.

Further on:

[44] Ms. Queano contends that the question to be asked under s. 2(2)(b) is whether the parties separated. She says that the parties clearly did so at the end of 2010, and that they remained separated for the rest of Ms. Jacinto’s life.

[45] Again, I am unable to fully agree with Ms. Queano’s interpretation of the statute. Paragraph 2(2)(a) of the WESA provides that married persons cease to be spouses when events occur that engage the property division provisions set out in Part 5 of the Family Law Act, S.B.C. 2011, c. 25. Typically, those provisions are engaged, under s. 81 of the Family Law Act, when the parties separate.

[46] Paragraph 2(2)(b), on the other hand, which applies to persons who are not married but are in a marriage-like relationship, does not mention “separation” nor does it incorporate any test involving Part 5 of the Family Law Act. It simply states that persons in a marriage-like relationship cease to be spouses when either or both of them “terminate the [marriage-like] relationship”. I do not suggest that separation is an irrelevant consideration under the provision. The fact that parties have separated may lead a judge to infer that one or both of them has terminated the marriage-like relationship. That said, separation, per se, is not the test for termination of a marriage-like relationship.

Mr. Justice Groberman wrote that the standard for termination is a flexible one.

[55] What we are left with, in s. 2(2)(b) of the WESA, is a rather imprecise and flexible legal standard. The question of whether a person has “terminated the relationship” requires a judge to consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence of the relationship. The determination is a “judgment call” for the trial judge – the application of a broad legal standard to the factual circumstances of an individual case. It is a question of mixed fact and law.

I have some doubt as to whether the drafters of WESA intended to have different criteria for determining when a spousal relationship ends for the purpose of WESA and for the purpose of the FLA. I understood that the intent was that one could have either a claim under the FLA or WESA but not both.

Consider this scenario. A couple living in a marriage-like relationship “separates” but neither one “terminates” the relationship. One of them dies without a will, leaving a child from a previous relationship surviving him. The implication is that the surviving spouse may make both a claim to property under the FLA and a share of the estate under WESA. Suppose he has an estate of $1 million, and the court finds that the surviving spouse is entitled to $400,000 under the FLA, leaving the value of the remaining estate at $600,000. Of this $600,000, the surviving spouse receives the first $150,000 plus one-half of the balance. The total amount the surviving spouse receives is $775,000 ($400,000 under the FLA, plus $150,000 and $225,000 under WESA). If the spouses had not been separated, the surviving spouse would have received $575,000. If they had been separated, but the relationship terminated, then the surviving spouse would have received $400,000.