IN THE SUPREME COURT OF BRITISH COLUMBIA

 

Re: the Estate of James Henry Luther Austin, Deceased

 

Citation:	Austin v. Goerz,
	2006 BCSC 2055

 

Date: 20060630
Docket: 07116
Registry: Courtenay

Between:

Linda Pauline Mary Austin

Plaintiff

And:

Catherine Anne Goerz

Defendant

Before: The Honourable Madam Justice Ballance

Oral Reasons for Judgment

In Chambers
June 30, 2006

Counsel for Linda Austin:	A. Marsden
Counsel for Catherine Goerz	G. Lee
Place of Trial/Hearing:	Courtenay, B.C.

[1]                THE COURT:  This is an application for summary judgment under Rule 18(A) of the Rules of Court brought by the plaintiff, Linda Austin, seeking a declaration, that the defendant, Catherine Anne Goerz, is not a common-law spouse of the late James Austin for the purposes of the Estate Administration Act, R.S.B.C. 1996, c. 122.

[2]                The material background facts are not in dispute.  Linda Austin and James Austin were married in October 1970 and separated in February 2000.  They continued living separate and apart until James Austin's death on March 11, 2006.  Earlier, in June 2003, Linda Austin launched an action seeking divorce, division of assets and related relief.  However, at the time of James Austin's death, no order for divorce, nullity, or judicial separation nor any matrimonial relief had been granted.

[3]                Catherine Goerz and the deceased began living together in February 2000.  They resided in Ms. Goerz's home in Victoria and later in her home in Comox until the time of the deceased’s death. 

[4]                Ms. Goerz's evidence, which is not contradicted in any cogent way, is that she and James Austin were in a committed relationship and had planned to marry following his divorce from the plaintiff.  During their six-year relationship, Ms. Goerz and the deceased vacationed together and celebrated events which they considered significant, such as their birthdays and anniversary.  According to Ms. Goerz, they presented themselves as being in a committed, marriage-like relationship to family, friends, and at large.  Notably, the plaintiff herself understood that Ms. Goerz and the deceased were living together as "man and wife", as she states so twice in her statement of claim, and deposes to that fact in one of her affidavits filed in this proceeding.   Of course, the plaintiff's understanding of the relationship is not conclusive, but it is certainly relevant to the question of the manner in which Ms. Goerz and the deceased were holding out their relationship, and how that relationship was being perceived by others.

[5]                Sadly, James Austin was diagnosed with cancer in November 2004.  Catherine Goerz was his primary caregiver right up until his death in 2006.  She nursed him throughout his illness, and accompanied him to doctor's appointments and chemotherapy sessions.  She was at his side when he died.

[6]                Ms. Goerz and James Austin kept their finances separate throughout their relationship.  Specifically, the deceased did not make any financial contribution to the home which Ms. Goerz owned in Victoria, which she subsequently sold, nor her present home in Comox where they resided until his death.  She paid the mortgage and all utilities and like expenses.  The deceased contributed about $200 per month toward groceries.  In the family law proceeding initiated by Linda Austin, the deceased had sworn an affidavit confirming what I have just stated regarding his financial independence from Ms. Goerz.

[7]                Section 1 of the Estate Administration Act defines a common-law spouse as:

1(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;

[8]                It is clear that Ms. Goerz does not fall within the first branch of the definition, indeed she does not even purport to.  Plaintiff's counsel asserts that Ms. Goerz does not come within the second branch of the definition as spelled out in section 1(b) either.  He contends that the parameters of section 1(b) must be narrowly construed in order to be harmonious with section 1(a).  So narrowly, in fact, as to apply only to persons of the same gender.  The underlying rationale for that contention offered by plaintiff’s counsel is that at the time of the enactment of section 1(b) only that class of person, namely persons of the same gender, lacked the capacity to marry legally and hence could not qualify as a common law spouse under section 1(a). 

[9]                At the core of the plaintiff’s position is the notion that one cannot enter into a common-law relationship as defined in section 1(b) where one lacks the legal capacity to marry.  It follows, according to the plaintiff, that because she and James Austin were not divorced, he lacked the capacity to marry and thus cannot qualify as a common law spouse in a heterosexual relationship.

[10]            That submission is plainly wrong.  It is wrong in the face of the clear statutory language, and it is wrong in the context of the history of that provision of the Estate Administration Act, including the amendments that were made to it to encompass same gender couples, effective November 2000.

[11]            The legitimate question on this application is whether Ms. Goerz and the deceased lived and cohabited in a marriage-like relationship, for at least two years, immediately before the deceased's death within the meaning of section 1(b) of the Estate Administration Act.   

[12]            Plaintiff's counsel contends that a hallmark feature of a marriage, and thus of a marriage-like relationship, is the financial maintenance and financial contribution between the parties, and in particular in the case at hand, by the deceased in favour of Catherine Goerz.  That contention is ill-conceived and flows from a long ago outmoded legal concept of marriage. 

[13]            At one time the definition of a common-law spouse under the predecessor to section 1(b) explicitly incorporated the requirement that the deceased spouse had maintained the surviving common-law spouse.  As the societal reality of marriage evolved, the feature of “maintenance” became increasingly considered as flawed.  Indications of discontent can be found in the case law and secondary writings.  It is no oversight that the element of “maintenance” was eventually abandoned from the definition altogether. 

[14]            I have read the cases referred to me by counsel, including Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, [1986] 5 W.W.R. 1 (C.A.), Einfeld v. Bellrichard (2001), 37 E.T.R. (2d) 34, 2001 BCSC 92, and the leading authority, Takacs v. Gallow (1998), 48 B.C.L.R. (3d) 265, 157 D.L.R. (4^th) 623 (C.A.).  I would like to note that leave to the Supreme Court of Canada in Takacs was denied.  It is also important for plaintiff’s counsel to recall that the first fourteen pages or so of that decision is the dissent.  I have also reminded myself of some important remarks made by the Supreme Court of Canada in Miron v. Trudel, [1995] 2 S.C.R. 418, 124 D.L.R. (4^th) 693 and also looked at the case again of Renko v. Stevens (1998), 47 B.C.L.R. (3d) 7, 21 E.T.R. (2d) 1 (C.A.), even though it was decided under the earlier definition of common law spouse. 

[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.

[16]            Indeed, given the looming family law proceedings which had not been resolved, I would think that the separation of the finances of Ms. Goerz and Mr. Austin was a prudent course of action to take. 

[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. 

[18]            I think it clear that the defendant, Catherine Anne Goerz, is the surviving common-law spouse of the late James Austin, as defined in section 1(b) of the Estate Administration Act.  Accordingly, the relief sought by the plaintiff for the opposite declaration, is dismissed.

[Discussion between counsel and the court concerning costs and matters of clarification.]

[19]            The relief sought in paragraphs 3, 4, 5 and 6 of the plaintiff’s motion, including the issue of costs, is adjourned generally by consent.  The caveat is removed by consent.  I order that Kristi Meier be appointed administratrix of James Austin’s estate and that she pay out forthwith from the CIBC accounts of the deceased, the sum of $25,000 to Mr. Marsden’s firm in trust, for the care and ongoing maintenance, and other reasonable expenses, of the plaintiff, and that such payment shall be without prejudice to the claims of either party.  These two orders are also by consent.

“Madam Justice Ballance”