(Don’t) live together, love together

(Don’t) live together, love together

A frequent area of estate litigation involves claims by adult interdependent partners against the estates of their deceased partners.  An adult interdependent partner is roughly the Alberta equivalent of a common law spouse, but may include other types of relationships.

To qualify as an adult interdependent partner, two people must cohabit in a relationship of interdependence continuously for at least 3 years, unless they have a child together or have entered into a written partner agreement.  Where there are no children or agreements, one of the first things we will want to see is evidence of the length of cohabitation.  This is a complex analysis which requires more than a review of the couple’s address history during the last three years of the deceased’s life.

In the recent case of Wright v Lemoine, 2017 ABQB 395, the Alberta Court of Queen’s Bench confirmed that cohabitation does not necessarily mean living under the same roof.  Courts in Ontario, British Columbia and even in Tasmania have arrived at the same conclusion.

In Wright v Lemoine, Ms. Wright sought adult interdependent partner support from Mr. Lemoine.  One of the key issues was whether the couple lived together continuously for at least three years. Due to his work schedule, he was frequently away in remote locations.  When he was not working, the couple spent time together in hotels or at his home in Saskatchewan.  Shortly after the relationship began, Mr. Lemoine purchased a trailer in which the couple resided when he was in town.  Sometimes Ms. Wright joined him at his work locations and they went on several extended vacations together.  When Mr. Lemoine was away, Ms. Wright stayed with her mother.  In the three years prior to their separation, 26 days was the longest time the two spent apart.

Mr. Lemoine asserted that as a result of frequent interruptions of their co-residence, the parties did not cohabit continuously for three years.  He also pointed to the fact that Ms. Wright kept her mother’s residence as her mailing address for the duration of the relationship.

Following an extensive review of the evidence and the existing case law, Justice Nixon held that the couple cohabited for the necessary period, and confirmed that the requirement for cohabitation did not equate to co-residence.  The judge reiterated that a flexible approach was necessary and that the couple’s intention was a key factor for determining whether they have cohabited for the purpose of the legislation.  Mr. Lemoine’s unique work schedule was not enough to displace the couple’s intention to live together when he was back from work.

A different illustration of the same principle can be found in this very recent decision of the Full Court in Hobart, Tasmania.  In that case, the deceased and his alleged common law spouse had not cohabited for much of their 23-year relationship because the deceased was a hoarder and his spouse had found it unbearable to live in the same residence as him.  Nonetheless, there was sufficient evidence that they saw each other almost every night, that they had an exclusive sexual relationship and were considered in the community as a couple.  The judge concluded that despite the daily separation, the relationship was significant and continuous for the amount of time required by the relevant legislation, such that the spouse was entitled to the whole of his estate.

In Alberta, a finding that a person was the deceased’s adult interdependent partner could have a significant impact on an estate.  It may entitle the surviving partner to a significant portion of the estate if there is no will, a right to make a claim for maintenance and support even where there is a will, and the priority to administer the estate.

We have experience with analyzing the required elements of the legislation together with the factual matrix to advise whether someone meets the legal definition of an adult interdependent partner.  Feel free to contact me if you think someone’s status may have an impact on an estate you are dealing with.

Thank you for reading!

-Predrag (Peter) Tomic

Predrag Tomic

Predrag Tomic

Predrag (Peter) Tomic is a wills and estates lawyer with a primary focus on estate litigation. Peter’s practice includes estate planning, probate matters and resolving complex estate and trust disputes for clients throughout Alberta and Canada. Peter also regularly acts in matters involving Power of Attorney disputes, mental capacity litigation and adult guardianship and trusteeship issues. Peter has presented on estate topics for the Legal Education Society of Alberta and CPLED and frequently teaches adult education courses about estate planning and executor duties.

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