Are You and Your Live-in Lover Common-Law Spouses Under the Law?

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Written by Kylie Walman

Although you may intend to be living a free-wheeling/no-strings attached existence, if you’ve lived with your romantic partner for more than two years you may be spouses under the BC Family Law Act.  And that means when you split, you could be on the hook for spousal support and dividing all of your property 50/50. 

In 2013, the Family Law Act came into force and the laws for property division that are applied to married couples when they divorce are now also applied to unmarried couples who are found to be spouses. So how do you know if you’re spouses?  In the recent decision of Weber v. Leclerc, 2015 BCCA 492, the British Columbia Court of Appeal made clear that the answer depends mostly on the nature or quality of your relationship, not on what either of you say you intended – particularly after-the-fact when you may have a lot to lose admitting that you intended to live as spouses. That was the situation in the Weber case, where Ms. Leclerc said, after-the-fact, that she never intended to be in a spousal relationship with Mr. Weber.  The BC Supreme Court and the Court of Appeal rejected her evidence finding that it wasn’t consistent with the other evidence that made clear the couple were in a “marriage-like relationship” (like the fact that they lived together for 11 years, were sexually active and monogamous, raised their separate children together, went on family trips, and had family portraits taken).  The Court of Appeal said that the question isn’t whether the couple intends to be bound by the laws applied to married couples; the question is – did the couple enter into the relationship intending to live together for an indeterminate amount of time, like a married couple?  If so, they will be spouses. 

Of course the question then is – what is living “like a married couple”?  That’s where things can become more difficult to pin down.  There is no checklist you can tick off to see if your relationship would be considered spousal – and rightfully so.  All relationships, married or not, are different and there are infinite variations of relationships that could be considered spousal.  For example, some couples maintain a sexual relationship, while others don’t; some couples mingle their finances while others keep their money and property separate; some couples holiday separately; some couples enjoy public displays of affection, while others are very private, etc.  So if this feels like laws foisted on unmarried couples, without them specifically choosing that, as the Court of Appeal pointed out, unmarried couples can choose not to have those laws apply to their relationship – by entering into a legally binding contract, or cohabitation agreement – “opting out” of certain parts of the Family Law Act.  So, if you’re approaching that two year mark living with your significant other, it may be time for a conversation and a trip to your family law lawyer.
Ms. Leclerc has since brought an application for leave to appeal the case to the Supreme Court of Canada.  A decision from the Supreme Court of Canada as to whether they will hear the case is expected to take anywhere from two to four months.

Following Accident, Liability Was Denied

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Michael Yawney QC was retained by a Vernon woman who was side swiped and run off the road. She suffered soft tissue injuries in the accident, including exacerbation of prior injuries.  Liability was denied, however the matter was settled prior to trial for over $200,000.00 plus costs and disbursements.

Jury Award Far Exceeds ICBC Offer

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HALLER v. GALEY

Jury Trial Conducted by James Cotter and Ryan Irving, December 2015

Our client, Mr. Haller, was 62 years old at the time he was injured in a high speed, rear-end motor vehicle accident. Following the accident, he suffered from a significant neck injury and debilitating headaches, as well as problems with balance and vertigo, requiring him to use a cane. At the time he was a logging truck driver who had taken time off of work for treatment of cancer. Mr. Haller intended to return to work in his chosen profession once he had finished his treatments. He had been driving a logging truck for nearly 40 years, and had no intention of retiring any time soon.

ICBC was the insurer for the Defendant Galey, who hit Mr. Haller’s vehicle from behind. ICBC took the position that Mr. Haller was not going to return to work as a logging truck driver even if the accident had not occurred, as he was fighting cancer, he had diabetes, and he was too old. ICBC took this position despite the fact that Mr. Haller had evidence supporting the fact that he had worked all of his life, and that he wanted to continue working, and he did not have limitations to working prior to the accident. This was supported by his medical records, his financial records and his co-workers and friends.

ICBC set the matter down to be heard in front of a jury. James Cotter, a senior litigation partner at Nixon Wenger LLP and Ryan Irving, a litigation associate, conducted the trial on behalf of Mr. Haller. At the trial, the Defense argued that any continued problems that Mr. Haller had with regard to being unable to work related to his diabetes rather than injuries suffered in a high speed accident. Cotter and Irving obtained expert opinion evidence from a medical doctor with specialty in physical medicine and rehabilitation, as well as a doctor with a specialty in ear, nose and throat conditions (primarily balance related issues). Both of these medical experts provided opinions that Mr. Haller’s chronic, debilitating neck pain, headaches, and balance issues all stemmed from the trauma due to the accident. The Defense retained its own expert, who had the unique opinion that the accident was not a contributing factor for Mr. Haller’s current disability, rather it was his diabetes that was causing balance issues, which prevented him from working.

After a week-long trial, the jury verdict came back largely in agreement with Mr. Cotter’s submissions regarding Mr. Haller’s claim. The verdict was a fair result, which was far more than what ICBC had offered. The jury believed Mr. Haller and his medical experts in regard to his injuries and his intention to keep working. They did not accept the Defendant’s argument that he was too old or that his diabetes was preventing him from driving his logging truck. It was a just result for Mr. Haller, who showed courage to take this matter to a trial in the face of ICBC’s low offer. The jury applied common sense and arrived at a fair result.

British Columbia Court of Appeal confirms that couple were spouses and the Family Law Act applies

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Kylie Walman, was retained to go to the Court of Appeal on behalf of one of the parties in a family law dispute concerning whether he and his ex-partner were spouses.  The opposing party (she) took the matter to the BC Supreme Court arguing that the couple were not spouses and consequently the Family Law Act should not apply, which would require her to pay spousal support and the couples’ property be divided.  She lost at the Supreme Court and appealed the matter to the Court of Appeal.  We were successful and the Court of Appeal upheld the Supreme Court’s decision finding that the couple were indeed spouses, having lived together for more than two years in a “marriage-like” relationship.  The wife argued vigorously that the court should not find a spousal relationship unless it’s clear the couple intended to live as spouses and intended to have the same laws applied to them as are applied to married couples.  The Court of Appeal disagreed and held that determining whether a couple are spouses requires an examination of the nature and quality of the relationship.  The Court agreed that intention is important but it’s the intention to live together for an indeterminate amount of time, in a relationship similar to marriage; not the intention to be bound by particular laws.  The Court also made clear that after-the-fact statements or evidence about the parties’ intentions during the relationship will only be given weight where it’s consistent with other objective evidence regarding the nature of their relationship.   

She has now applied for leave to appeal the decision to the Supreme Court of Canada.  A decision from the Supreme Court of Canada as to whether they will hear the matter is expected sometime between April – June 2016.

http://www.canlii.org/en/bc/bcca/doc/2015/2015bcca492/2015bcca492.html?autocompleteStr=weber%20v.%20lec&autocompletePos=2

Ciarniello v. James, 2015 BCSC 2148

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Wills variation claim.

Claim for life changing injuries results in $2,200,000.00

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Senior Litigation Partner Mike Yawney was retained by the father of a 20 year old daughter who was severely injured in a motor vehicle accident to assist her in pursuing a claim for life changing injuries. She had no memory of the accident. She suffered a moderate to severe brain injury in the accident, along with other physical injuries that required a lengthy hospital stay and rehabilitation. The claim was difficult to pursue because the young woman was initially blamed for causing the accident.  After retaining the involvement of accident reconstruction engineers, human factors experts, and an extensive investigation of the accident, our team was able to substantiate an argument that the young woman was not solely responsible for causing the accident; that other parties had some responsibility for it occurring.
 In addition to a hard fight on liability, the assessment of the young woman’s injuries also required extensive work. Several medical specialists were retained to assess the plaintiff, including a physiatrist,  neuropsychologist, neurologist, psychiatrist, occupational therapist and life planning/care experts, economists and life expectancy experts, along with a case manager to assist the plaintiff in her day to day life. The matter resolved shortly before a month long scheduled trial for approximately $2,200,000.00 including costs.

ICBC Ordered to Pay Costs for Inappropriate Application

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Mr. Cotter represents a young lady injured in a motor vehicle accident where her main injury is a chronic whip lash injury to her neck.  This claimant was only 17 years old when it happened, and she is still recovering from the injury, such that it is unclear as to her degree of recovery.  Even though the claim had just been started, the ICBC lawyer demanded particulars relating to this young lady’s past wage loss and her claim for wage loss in general.  Despite being advised that this type of information was premature, ICBC proceeded with its application seeking this information and also seeking costs personally against Mr. Cotter.  The Master who heard the application dismissed ICBC’s application for particulars and ordered costs against them.  In essence, the application for particulars was deemed to be premature, and the tactic of seeking costs personally against a claimant’s lawyer was deemed to be inappropriate.

Click here to read the Court Decision.

$495,000.00 Settlement

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Senior Litigation Partner Mike Yawney was retained by a 48 year old man who was hit broadside by a vehicle that failed to stop at a stop sign. The impact was a significant one and caused soft tissue injuries, principally back and neck, which affected the day to day functioning of the client who had a small hobby farm.  While the client recovered to some extent, he was left with some limitations, in particular, in terms of being able to perform all the chores he had to do on his farm.  The claim settled a month prior to the scheduled trial date for a total of $495,000.00.

Plantiff Awarded $670,000 in damages

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Mike Yawney, senior personal injury litigation partner, and associate Ryan Irving, took this claim to trial.  The Plaintiff, Mr. Dunbar,  had been injured in a head on collision on Hwy 97 near Salmon Arm, B.C. on July 6, 2011. He was a tradesperson and was on his way to work when the accident occurred. He suffered neck, back and hip injuries as a result of the accident. Due to his stoic nature and the financial needs of his family (he had a wife and child to support), he went back to work shortly after the accident and toughed it out until his back gave out about 14 months later. The medical evidence supported that his back and other problems were caused by the accident, and despite the fact that his income had gone up after the accident, that he was entitled to compensation for past and future income loss due to his injuries. He also recovered damages for pain and suffering, as well as for future care needs and out of pockets expenses.

The defendants took the position that the Plaintiff had recovered from his injuries in the accident and argued that his damages were limited. In a hard fought two week trial, the trial judge awarded a total of $670,000.00 in damages, plus legal costs, to the Plaintiff. The evidence and argument presented by Mr. Yawney and Mr. Irving, including the medical evidence of multiple experts, succeeded in persuading the Court that the Plaintiff was entitled to substantial compensation for the injuries suffered in the accident and for the long term impact it would have on his life.

 

DeMarco v Challenger Motor Freight et al

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Michael Yawney, Senior Litigation Partner, was retained by Mr. DeMarco to pursue a claim for injuries against a long haul truck driver, and the freight company he worked for. As a result of the efforts of Mr. Yawney in a liability trial in 2012 where he successfully argued that the truck driver had gone through a red light on Hwy # 1 near Revelstoke, B.C. and struck  Mr. DeMarco’s vehicle broadside. An interesting aspect of this claim was that Mr. Yawney originally was counsel for the two passengers in Mr. DeMarco’s vehicle; when he was successful their joint trial on liability, Mr. DeMarco (who was a defendant in that action as a driver of one of the vehicles involved in the collision) retained Mr. Yawney to pursue his personal injury claim. Mr. DeMarco’s claim was settled just prior to a March 2, 2015 trial date to assess his damages.

Click here to read the Court Decision.

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