Court considers subjective and objective factors to determine existence of common law relationship
In a recent estate law case, a B.C. court had to consider whether the deceased and the person granted letters of administration were common law spouses for the requisite period prior to death.
In Jones v Davidson, 2020 BCSC 1371, Larry Jones died, leaving no will and leaving a house as his principal asset. Defendant Tracey Davidson, who was granted letters of administration as his purported common law wife, transferred the house into her own name.
The son of the deceased, plaintiff Eric Jones, filed a case before the Supreme Court of British Columbia, contending that his father and the defendant were not common law spouses as defined in the Estate Administration Act, R.S.B.C. 1996, c. 122 for at least two years immediately before his father’s death on Mar. 18, 2014.
The court therefore had to determine whether the deceased and the defendant had lived and cohabited with each other in a marriage-like relationship for the requisite two-year period. The court considered the intention of the deceased and the defendant, as well as objective factors like whether they had children, whether they shared the same shelter, their sexual relationship and personal behaviour, the services they rendered to each other, their social and societal interactions and economic support.
The court’s factual findings, based on the testimonies and other evidence, were as follows. The couple began casually dating around the summer of 2010, with their relationship developing through 2011 and 2012. In 2011, they started an intimate relationship, started visiting each other every few months and sporadically texted and called each other. The deceased also began sporadically giving the defendant financial support. From the late 2011 until early 2012, they started communicating significantly more frequently. By February 2012, they publicly became known as boyfriend and girlfriend.
In the summer of 2012, the defendant and her daughter travelled to the house of the deceased and started spending a significant amount of time there. The court, however, rejected the defendant’s claim that she had partially moved into the house of the deceased at that time. “In my view the movement of some clothes, camp dishes and children’s toys does not constitute moving,” wrote Justice Andrew P. A. Mayer for the court.
The court found that the defendant began living with the deceased when she decided to stop her university studies and to move with her daughter to his house in April 2013. After that point, the deceased was listed as the daughter’s stepfather in her school registration documents, the defendant and her daughter were included as dependants in his revised insurance policies and the defendant recorded the marital status on her tax return as “common law.”
The court held that, on a balance of probabilities, the couple was not in a marriage-like relationship until April 2013. Therefore, they did not meet the requisite two-year period, and the defendant was not considered the common law spouse of the deceased at the time of his death.
As the next of kin and the only lineal descendant of the deceased, Eric Jones was entitled to the administration and to the entirety of the estate based on intestacy. The court revoked the letters of administration granted in favor of the defendant and granted letters of administration to the plaintiff and ordered the defendant to transfer the house to the plaintiff.
