Before he died, Mr. Argenti transferred his house into a joint tenancy with one of his daughters, Tina Argenti. By his will, he also left everything to her.
After Mr. Argenti's death on September 23, 2003, Mr. Chowdhury made a Wills Variation Act claim to vary Mr. Argenti's will. (He also made claims to an interest in the house, but I am going to confine my discussion to the Wills Variation Act claim.)
In British Columbia, the Wills Variation Act allows a spouse or child to apply to court to vary a will if adequate provision has not been made for the spouse or child.
One of the issues in Chowdhury v. Argenti, 2007 BCSC 1207, was whether Mr. Chowdhury was Mr. Argenti's spouse as defined in the Wills Variation Act. For the purpose of the Act, a spouse includes someone who “is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.”
Madam Justice Allan found that Mr. Chowdhury was not Mr. Argenti's spouse at the time of Mr. Argenti's death. Although they had lived together for about three years from 1993 to 1996, they did not live together thereafter. She found that even if they had lived in a marriage-like relationship when they lived together, they were not in a marriage-like relationship at the time of Mr. Argenti's death. Accordingly, Mr. Chowdhury could not succeed in his claim to vary Mr. Argenti's will.
In reaching her decision, Madam Justice Allan considered the evidence that Mr. Argenti's relationship with Mr. Chowdhury was not open. There was not a general recognition among friends and family in the community that they were a couple. She attached little weight to this evidence, noting the difficulties same-sex couples may have in being accepted. She wrote at paragraph 61,
I was not directed to any Canadian case considering a plaintiff’s claim to be a spouse in a same-sex relationship. While the Canadian government has recognized the right of same-sex couples to marry and – whether they are married or common-law - to enjoy the benefits and rights accorded to opposite-sex couples, not all of society approves of, or recognizes, same-sex relationships. In some communities, openly gay people may be subjected to prejudice and vilification. There are obvious reasons, unique to same-sex couples, for keeping a close, loving marriage-like relationship a secret from their employers, family and friends. In my view, the “recognized in the community as a couple” requirement that opposite-sex couples enjoy common-law status should not be imposed on all same-sex couples.
The Court’s reasons indicate that two people may for the purpose of the Wills Variation Act live in a same-sex marriage-like relationship, even if they are not open with others about their relationship. In this case, Mr. Chowdhury was unable to establish that he lived in a marriage-like relationship with Mr. Argenti at the time of Mr. Argenti’s death