Mazur v. Berg

In 2000, the British Columbia Legislative Assembly changed the definition of “spouse” in the Estate Administration Act and the Wills Variation Act (as well as other statutes) to allow common law spouses to have similar rights on death as married spouses. For example, a spouse who was living in a marriage-like relationship with the deceased for at least two year at the time of the deceased death, can now apply to court to vary the deceased’s will pursuant to the Wills Variation Act.

There are now quite a few disputes over whether a person claiming to be a spouse was living in a marriage-like relationship with the deceased. The most recent decision is Mazur v. Berg, 2009 BCSC 1770.

Caroline Mazur applied to vary the will of Victor Fennell, who died on June 20, 1988. In his will, Mr. Fennell left his estate to his only child, Jesse Berg. The value of the estate was about $300,000.

Ms. Mazur and Mr. Fennell began their romantic relationship in September 2002. They each had a residence on Hornby Island, B.C. Except for when Mr. Fennell was working in Port Alberni, they spent most of their time together at one or the other’s residence. Friends and acquaintances considered them to be a couple. They celebrated holidays together. They worked together on their properties. Mr. Fennell became close to Ms. Mazur’s son. Mr. Fennell proposed marriage to Ms. Mazur, and gave her a ring. When Mr. Fennell became ill as result of Hepatitis C, Ms. Mazur cared for him, and went to medical appointments with him.

Mr. Berg argued that his father and Ms. Mazur were not living in a marriage-like relationship. Each had their own residence. They kept their property and finances separate. When Mr. Berg bought some real estate, he took the title in his sole name. Ms. Mazur had limited access to his bank accounts. Ms. Mazur put her status as “single” on her tax returns. During an appeal for disability benefits, Mr. Fennell introduced Ms. Mazur as his “neighbour.”

In holding that Ms. Mazur and Mr. Fennell lived in a marriage-like relationship for almost 6 years, Madam Justice Adair applied the British Columbia Court of Appeal decision in Austin v. Goerz, 2007 BCCA 586. She wrote:

It is clear from Austin v. Goerz that financial dependence is not a necessary aspect of a “marriage-like relationship.” How the parties arranged their financial affairs is but one factor to be considered. As the court also observed the presence or absence of any particular factor cannot be determinative, since there is no checklist of characteristics that will inevitable be found in all marriages.

Madam Justice Adair held that Mr. Fennell did not make adequate provision in his will for Ms. Mazur. He had both a legal obligation (the obligation of spousal support) and a moral obligation to Ms. Mazur, while he had a moral obligation to Mr. Berg. She varied Mr. Fennell’s will to leave 55 percent of the estate to Ms. Mazur, and 45 percent to Mr. Berg.