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This article originally appeared in the January 15, 2016 issue of The Lawyers Weekly.

B.C. Court of Appeal widens definition of ‘marriage like relationship’



A recent British Columbia Court of Appeal decision confirms the increasingly broad definition that the province’s highest court is giving to the concept of a “marriage-like relationship” under the B.C. Family Law Act, say lawyers familiar with the case.

“What’s regarded as a marriage like relationship appears to be evolving according to social norms,” said Lisa Hamilton, a veteran Vancouver-based family law lawyer and board member for the Continuing Legal Education Society of British Columbia.

“I think the doors are wide open to recognizing marriage-like relationships that haven’t been recognized that way before.” The appellant in Weber v. Leclerc [2015] BCCA 492, Anne Brigitte Leclerc, went to the B.C. Supreme Court in early 2015 seeking a summary judgment declaring that she and her former partner, Allan Kent Weber, were not spouses under the Family Law Act because they had not lived in a marriage-like relationship. Leclerc is the president of CF Group Inc., a Nelson, B.C.-based manufacturer of fans, blowers and air filtration equipment. Weber is a landscaper. The April 24, 2015 summary judgment found that the relationship was marriage-like, even though the couple separated their finances throughout their timetogether. Leclerc appealed, arguing that the summary judge misapplied the legal test for a marriage-like relationship and failed to give proper weight to her assertions that she did not intend to live in such a relationship. Under the Family Law Act, which came into effect in March 2013, a person is legally considered a spouse if he or she has lived with another person in a marriage-like relationship for a continuous period of at least two years.

Leclerc and Weber began cohabiting in 2002 and continued living together until at least 2011. The summary judgment listed a number of undisputed facts, noting that the couple shared a bedroom and had sexual relations throughout that period and were monogamous. Weber had two sons from another relationship, and Leclerc had one, and they raised them together until they left home as adults. They also purchased property together, and although their home was in Leclerc’s name, Weber contributed to the purchase and they shared mortgage payments. The evidence also revealed smaller details, including the fact they displayed family portraits in the home, took vacations together, and both shopped for groceries. The relationship began to unravel in 2011, when Leclerc started experiencing health problems. In October 2011, as she was about to have hip replacement surgery, Weber went on a vacation with friends to Mexico.

In early 2012, when she was diagnosed with chronic obstructive pulmonary disease, Weber admitted in court that he considered leaving the relationship and sought legal advice. In writing for the three-judge panel in the Nov. 30 decision, Appeal Court Justice Harvey Groberman agreed “Mr. Weber’s reactions to Ms. Leclerc’s health difficulties were not what one would expect in a healthy marriage.” But, he added several factors support the idea that the relationship in this case was “marriage-like.
“The cohabitation was coupled with romantic and sexual relations, and it appears that the couple’s intentions were to remain together for an indefinite, but relatively lengthy, period. “There were significant social interactions between them, and those interactions closely resembled those typical of married couples. For many purposes, they treated themselves and their children as a family unit.” Leclerc’s evidence that she never intended to marry Weber was of “very limited importance,” added Justice Groberman.

“It was the quality of their existing relationship that was important in this case, not their intentions to transform it into a marriage.” The decision argued that the B.C. Court of Appeal cases cited during the summary trial reflect the changing definition of a marriage-like relationship, including Gostlin v. Kergin [1986] and Takacs v. Gallo [1998]. Departing from Gostlin, Takacs downplayed the importance of financial interdependence 12 years later as a key element of a marriage-like relationship, and emphasized that the intention to enter into a relationship similar to marriage is more important than an “intention to be bound by a statutory regime of mutual support.” While counsel for Leclerc argued that her intentions should decide the case, “our argument was that the law has evolved now to a broader approach,” said Vernon, B.C.-based family law lawyer Kylie Walman, who acted for Weber. “Lots of people enter into longterm relationships without really thinking what they’re intending at all. Having intention as the determinative factor — we can’t always get there because they may not have really thought about it. But through their actions they become marriage-like.” Leclerc had a vested interest in arguing the primacy of intention because she held most of the assets in the marriage, said Walman. She added that the Appeal Court’s willingness to consider other evidence on an equal footing with intention “had big implications for Mr. Weber in terms of the division of property, as well as spousal support.”

Hamilton said that family law lawyers in B.C. expected that the new Family Law Act would prompt more cases like Weber v. Leclerc because it gives property rights to common-law spouses who have lived together in marriage-like relationships for at least two years, unlike the old Family Relations Act there is no checklist of indicia to define a marriage-like relationship, she added. “You may see cases where the parties don’t necessarily have the same house, for example, or where there is no intimacy at all. “A lot of people could be very surprised at the end of a relationship when the other person is claiming property rights. There could be a rude awakening.” At the same time, Hamilton noted, the FLA is more respectful of co-habitation agreements, and that is the best way for couples to protect themselves if they are concerned about the potential division of property if the relationship ends.

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