All About Estates

What Makes a Marriage?

Each province in Canada establishes its own rules regarding the distribution of property where a person dies without a will. In Ontario, intestate succession is governed by Part II of the Succession Law Reform Act (the “SLRA”). Inheritance on intestacy is limited to married spouses and blood relations. If a person dies with a common law spouse, the spouse must commence a claim for dependant support pursuant to Part V of the SLRA in order to receive a share of the estate. For the purposes of the SLRA, common law spouses are defined as two persons who were not married to each other and have cohabited (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the parents of a child.

In British Columbia, intestate succession is governed by Part 3 of the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WES Act”). Similar to Ontario’s SLRA, spouses and blood relations inherit on intestacy. However, unlike the SLRA, the WES Act provides an expanded definition of “spouse” (at s. 2) which includes common law spouses, who are defined as two persons who “lived with each other in a marriage-like relationship for at least 2 years.” As a result, in British Columbia, common law spouses automatically have a right to share in the estate.

While the definitions differ, litigation arises in both provinces over whether a person qualifies as a common law spouse. Because humans are complex, and our relationships to each other reflect that, both provinces have adopted a relatively holistic approach to determining whether a person meets the definition of common law spouse. In Ontario, one of the most frequently cited cases is Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which sets out a non-exhaustive list of criteria to be considered. More recently, the British Columbia Supreme Court decision Jones v Davidson, 2020 BCSC 1371 (BC SC) provides a comprehensive analysis of factors.

In Jones v Davidson, Larry and Tracey commenced a romantic relationship in 2011. The relationship grew more serious in 2012, and they moved in together in 2013. Unfortunately, Larry died in 2014 without a will.

Tracey applied for and was appointed as administratrix (“estate trustee” in Ontario) of Larry’s estate a few months after his death. Tracey also got in touch with Larry’s estranged son from a prior relationship, Eric, who was living in the USA. Tracey advised Eric of her appointment.

In 2017, Tracey reached out again to Eric asking him to give up any interest he may have in Larry’s estate. At that point, Eric began looking into Tracey and began questioning whether she met the definition of “spouse” for the purposes of the WES Act. In May 2018, Eric brought an application to remove Tracey as administratrix and to compel her to account.

In reaching its decision, the Court held that “cohabit” was not synonymous with “co-residence”: it is possible to cohabit without living under the same roof. Rather, cohabitation must involve an intention to share responsibilities.

The Court then reviewed evidence of the Larry’s and Tracey’s intentions, as well as other objective factors: shelter (when they moved in together); sexual relationship and personal behaviour (when the relationship became committed); services (domestic chores, personal care); social (public acknowledgment of the relationship and integration into each other’s lives); economic support; children; financial and estate planning.

In this case, the Court found that Tracey did not meet the burden of proof that she was in a “marriage-like” relationship with Larry for at least two years: although they were in a committed relationship for at least a year, it was cut short by Larry’s untimely death. As a result, Tracey was removed as administratrix and Eric was declared the sole beneficiary of Larry’s estate.

As set out in this case, living together in the same home is not necessarily a prerequisite to being a “common law spouse.” Similarly, the fact that two persons live together on its own may not be sufficient to prove a relationship. Rather, the courts will consider multiple factors when reaching a decision. While this means that each case will be determined on its facts, this approach is reflective of the diversity that actually exists in society.

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About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation. More of Gillian's blogs can be found at


  1. David Tremblett

    October 7, 2020 - 6:17 pm

    Great article !

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