All About Estates

When Are You Married?

Most know that you don’t have to be legally married to have a “spouse” for income tax purposes, although legal marriage will work. If you have been living with someone in a conjugal relationship for 12 months or more regardless of your sex at birth, you will be considered spouses for tax purposes. You can ignore the 12 month requirement if you are living together and you are both parents of the same child.

It appears that the determination of whether you are married may depend on the jurisdiction and circumstances when it comes to determining entitlements in other matters.

In Turner v Stabeck, 2020 BCSC 1553, Ms. Turner was seeking a declaration (without a full trial) that she was the spouse of the deceased Mr. Stabeck who died suddenly and without a will. If she was declared the deceased’s spouse, she would inherit the largest share of his estate under the intestacy provisions of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA]. If not, the estate would be divided between his two adult children.

Section 2(1) of WESA says two people are spouses of each other 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.

Ms. Turner and Mr. Stabeck were not married but were living together in a marriage-like relationship when he died. The issue is whether that marriage-like relationship began at least two years before his death, as required by s. 2(1)(b).

The deceased’s son was the administrator of the estate. He contended that Ms. Turner and Mr. Stabeck began living together only eight or nine months before his father’s death. Prior to that, he says they were only “casually seeing” each other, with some extended visits to each other during holiday and vacation periods.

The Court, referring to case law, contended that although the WESA refers to people living with each other, a relationship can be “marriage-like” for purposes of the statute even when each person retains their own residence. The cases relevant to this matter turn on matters that include the history of the relationship, the intention of the couple, and how they presented themselves to others.

With reference to one case, the Court noted that the date of when cohabitation began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began, and how it will operate may not or do not exist.

With further reference to precedent cases, the Court cited a list of factors grouped into seven categories that may be considered in determining a marriage-like relationship:
1. Shelter
2. Sexual and Personal Behaviour
3. Services (meals, personal and household maintenance, shopping)
4. Social (how were they with others)
5. Societal (how were they viewed by others)
6. Support (economic)
7. Children

The Court noted that not all the factors within each group must be present in an individual case. For example, in some marriages or marriage-like relationships, finances and property are shared, in others property and finances are kept separate. Some parties to a marriage may believe they are in a marriage-like relationship when in fact they are not.

Based on the evidence presented and considered, the Court determined that Ms. Turner and Mr. Stabeck were in a marriage-like relationship at the time of Mr. Stabeck’s death and had been in such a relationship for a least two years preceding that date. Therefore Ms. Turner was defined as the deceased’s spouse pursuant to the WESA.

While this may be have a satisfactory result to some parties to this case, it is less than desirable way for individuals to manage their affairs and highlights the preference for estate panning, no matter the size and extent of the estate.

Happy Reading and stay safe.

About Steven Frye
Baker Tilly WM LLP is a leading, independent audit, tax, and business advisory firm based in Vancouver and Toronto, serving clients across Canada. Drawing on well-trained teams across a variety of disciplines, we ensure the alignment of our professional’s skills and experience with client requirements, resulting in exceptional service and business outcomes.

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