Austin v. Goerz

In British Columbia, if someone dies without a will, his or her common law spouse is entitled to share in the estate. The applicable statute, the Estate Administration Act, RSBC 1996, c. 122, defines common law spouse in s. 1 as either:

(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or
(b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death….”

The Wills Variation Act has a similar (but not quite identical) definition of common law spouse.

If a couple lived together for more than two years, intending to marry, and presenting themselves as living in a marriage-like relationship, but kept their financial affairs separate, were they a common-law couple as defined in the Estate Administration Act?

Madam Justice Ballance considered this issue in Austin v. Goerz, 2006 BCSC 2005, a case she decided in June, 2006. Linda Austin, who was the legally married, but separated wife of the late James Austin, argued that Catherine Goerz was not James Austin’s common law spouse.

Ms. Austin based her argument, in part, on the fact that Catherine Goerz and James Austin had kept their finances separate, and were not financially dependant on each other.

Madam Justice Ballance rejected Linda Austin’s argument that a couple must be financial interdependent to meet the legal criteria of common law spouses. She wrote:

[15] The authorities no longer support the principle that the absence of financial maintenance or dependence is conclusive that a relationship does not qualify as a common-law relationship under section 1(b). I suggest that such a principle would be untenable in the world of modern marriages and relationships. There are, as we know, not a small number of marriages today where lawfully married spouses have retained completely independent financial arrangements throughout the entire course of their marriage. The term “marriage-like” must be given a broad interpretation to reflect societal norms: it incorporates relationships which have a component of financial intertwining or dependence and those that do not. I reject utterly the contention that the term "marriage-like" was meant to continue to impose a mandatory component of maintenance or financial contribution by the deceased in the definition of "common-law spouse" under section 1(b), as urged by plaintiff’s counsel.
….
[17] I find on the evidence that the mutual intentions of the deceased and Ms. Goerz were that they were in a committed, marriage-like relationship for all purposes up until James Austin’s death. To the extent that resorting to evidence of objective factors need be made, and I think they need not, it is overwhelmingly supportive of that intention, despite the lack of sharing of expenses and commingling of assets.

The British Columbia Court of Appeal upheld this decision at 2007 BCCA 586.