What is the Definition of a Spouse Under the Family Law Act in BC?

The definition of a “spouse” for family law matters can be found in s.3(1) of the Family Law Act:

Spouses and Relationships Between Spouses

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.

What is a “Marriage-Like” Relationship?

The term "marriage-like relationship" has been interpreted by the Courts in several cases, including the following:

Dey v. Blackett – Holistic Approach & Intention

In the case of Dey v. Blackett, 2018 BCSC 244, the Court held that the “determination of whether a relationship was marriage-like requires a ‘holistic approach’, in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question.”

In the same case, the Court stated that intention of the parties is a factor that must be considered. While intention is subjective, the Courts have looked to objective factors to test the parties' intentions. The Court stated that “while intention is the key, a partner who claims or disavows such an intention may not be believed if all of the surrounding circumstances strongly imply the contrary.”

Yakiwchuk v. Oaks - Elastic

The concept of a marriage-like relationship has been described as an elastic one. In Yakiwchuk v. Oaks, 2003 SKQB 124, the Court stated:

Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. […] Agreements between people verifying when their relationship began and how it will operate often do not exist.

Issues such as finances, sexual relations, vacationing, demonstrations of affection, and declarations of intent can be approached in a variety of ways depending on the couple.

Molodowich v. Penttinen – Factors to Consider

The Court in Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC) listed seven categories that could inform the considerations when determining the nature of a relationship:

1.       Shelter (for example, living and sleeping arrangements);

2.       Sexual and personal behaviour (for example, fidelity, sexual relations, communication, gifts);

3.       Services (for example, household chores, meals, shopping);

4.       Social (for example participation in joint activities and relationship between spouses and their respective families);

5.       Societal (for example, attitude and conduct of the community towards the couple);

6.       Support (economic) (for example, financial arrangements, ownership of property); and

7.       Children (for example, attitude and conduct towards children).

Weber v. Leclerc – Re-Emphasis on Holistic Approach

In Weber v. Leclerc, 2015 BCCA 492, the Court of Appeal noted that the factors in Molodowich “are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.” That said, the Court of Appeal also emphasized that these factors should not be approached as a checklist, and emphasized again that the circumstances should be addressed holistically.

Re Warwick and Minister of Community and Social Services – Varies With Each Case

In Re Warwick and Minister of Community and Social Services (1978), 1978 CanLII 1300 (ON CA), the Court held that “the extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case.”

H.S.S. v. S.H.D.  – Other Factors to Consider

In H.S.S. v. S.H.D., 2016 BCSC 1300, the Court outlined the following factors which informed their analysis of whether the parties were living as spouses:

1.       Whether they vacationed together;

2.       The presence or absence of marital relations;

3.       How they conducted their financial affairs, including any financial planning they undertook as a couple and how they filed their tax returns;

4.       Estate planning;

5.       Making shared plans for the future; and

6.       Participation in joint social activities and the manner in which the spouses presented themselves to others.

Lariviere v. Coad - Summary

In Lariviere v. Coad, 2019 BCSC 1691, the Court set out a helpful summary of the factors that may utilized when determining whether there is a spousal relationship:

1.       The parties’ intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration.

2.       Objective evidence of the parties’ lifestyle and interactions supporting a finding that their interactions “closely resembled those typical of married couples.”

3.       Whether the parties treat themselves as a family unit.

4.       Whether cohabitation was coupled with romantic and sexual relations.

5.       Evidence of emotional interdependence, mutual commitment, and attachment.

6.       Whether the parties co-mingled assets and shared expenses.

7.       Whether the parties treated themselves as single or cohabiting for income tax purposes.

What is Not a Spouse?

The courts have been more definitive in determining what is not required for a marriage-like relationship. For example, the legal capacity to marry was not a prerequisite to being in a marriage-like relationship. Also, financial dependence was not required for a marriage-like relationship.

The quality of the marriage-like relationship is not the issue but whether one existed. The fact a relationship my have been unhappy at times does not mean that no marriage-like relationship existed or that the relationship ceased to be marriage-like.

What is the Significance of the Definition of a Spouse?

If you are a “spouse” you may be entitled to rights under BC’s Family Law Act. To prevent any confusion and to protect your rights as a spouse, read our blog about Marriage Agreements or Cohabitation Agreements.

Want to learn more? Please contact us for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation with one of our experienced family law lawyers.