11 April 2018
TO BE OR NOT TO BE, THAT IS THE QUESTION: When is a spouse not a spouse according to the Family Law Act?
Karen F. Redmond
Family Law Lawyer
In the recently reported case of Nicoll v. Webster 2018 BCSC 547, my colleague Nicole Garton successfully argued that her client, the Respondent, was not the spouse of the Claimant, Mr. Nicoll. Mr. Nicoll was making claims for division of property against Ms. Webster, but first had to prove that a marriage-like relationship existed. He had been living in Ms. Webster's home for a period of 27 months and although the parties had been dating, and had been intimate while living together, he was unsuccessful in proving his claims. Following a summary trial in March of this year, Madam Justice DeWitt-Van Oosten reviewed the relevant caselaw and concluded that the parties were not spouses as defined by the Family Law Act. Citing Austin v. Goertz 2007 BCCA 586 she said that no single factor is determinative of whether a relationship is appropriately characterized as marriage like. Financial dependence, for example, is not required in order for parties to be considered spouses. She also referred to Weber v. Leclerc 2015 BCCA 492.
The Nicoll case is short and easy to read and a good reminder of the factors that counsel and parties need to consider when entering into shared living arrangements and deciding whether to put agreements into place in order to protect themselves and their assets.
Posted by Collaborative DivorceVan