2008 BCSC 219 Gosbjorn v. Hadley

Before: The Honourable Madam Justice Gray

Reasons for Judgment

Counsel for the Plaintiff:	Trudy H. Hopman Barbara E. Bulmer
Counsel for the Defendant:	Naomi P. McKay
Date and Place of Trial:	October 23-25, 29, 30, November 9, 2007
	Powell River, B.C.

INTRODUCTION

[1] Terry Krompocker ("Mr. Krompocker") married Pamela Krompocker in 1971. They had two children together, Denise (now named Denise Hadley) and Shane Krompocker. Mr. Krompocker and his wife separated in 1993. In 1994, they entered into a written separation agreement, which provided in part that each relinquished any claim to the other’s estate, apart from specified pension benefits. Denise Hadley and Shane Krompocker have been self-supporting adults since at least the time of the separation agreement. At the time of trial they were 35 and 32 years old, respectively.

[2] Mr. Krompocker commenced a relationship with Christine Gosbjorn in about 1994. At that time, Ms. Gosbjorn’s daughter from a prior relationship, Ashley, was about five years old. Mr. Krompocker and Ms. Gosbjorn had a 12 year common law relationship, and did not separate for more than one night at any time prior to January 2006.

[3] Ms. Gosbjorn and Ashley spent some nights away from Mr. Krompocker in February 2006, but the legal effect of that is contentious. Ms. Gosbjorn’s position is that she and Ashley partially moved into a basement suite.

[4] On February 24, 2006, Mr. Krompocker committed suicide. He was 52 years old. He died without a will. Ms. Gosbjorn alleges that the net value of the estate is about $210,000. Ms. Gosbjorn alleges that she is entitled to the spousal share of Mr. Krompocker’s estate pursuant to the Estate Administration Act, R.S.B.C. 1996, c. 122 ("EAA"). If so, she is entitled to a life estate in the family home, the household furnishings, $65,000, and one-third of the residue of the estate. The balance of the estate would be shared equally by Denise Hadley and Shane Krompocker.

[5] Denise Hadley, as Administratrix of Mr. Krompocker’s estate, argued that Ms. Gosbjorn and Mr. Krompocker were separated at the time of his death such that their common law relationship had ended, and that consequently Ms. Gosbjorn is not entitled to a share in the estate. If Denise Hadley is correct, she and Shane Krompocker are each entitled to a one-half share in Mr. Krompocker’s estate.

[6] Ms. Gosbjorn argued that, if she is not entitled to the spousal share under the EAA, she is entitled to an interest in the assets of Mr. Krompocker on the basis of unjust enrichment. She referred to the length of the parties’ relationship and her direct and indirect contribution to the acquisition of the assets, and argued that there is no juristic reason for Mr. Krompocker's estate to retain her contribution.

[7] This case proceeded to a six day trial. The primary legal issue is under what circumstances, if any, will the separation of common law spouses for less than one year result in disentitlement of the survivor to the spousal share in the estate of the other spouse who died without leaving a will. The primary factual issue is the nature of the relationship between Mr. Krompocker and Ms. Gosbjorn at the time of his death. Other issues relate to the alternative claim in unjust enrichment to a constructive trust.

ADDITIONAL FACTS

[8] The last home in which Mr. Krompocker and Pamela Krompocker lived together was the Frolander Bay residence on Hollingsworth Road near Powell River, B.C. They lived there just prior to their separation in 1993. The property was just under one acre and situated on 90 feet of waterfront. It was beautiful, but required a lot of work.

[9] The separation agreement signed by Mr. Krompocker and Pamela Krompocker in 1994 was prepared by lawyers. Mr. Johnston acted for Mr. Krompocker.

[10] In 1994, Mr. Krompocker and Ms. Gosbjorn and Ashley began living together in rental accommodation in Powell River, B.C. Mr. Krompocker worked at the mill, which is now the Catalyst Paper Mill, as a tugboat skipper on the log pond. Ms. Gosbjorn worked for Loomis making deliveries. They both worked throughout the period that they lived together, except for the period near the end of his life when Mr. Krompocker was on medical leave.

[11] Ashley’s biological father is still involved in her life, and on occasion Ashley would stay with her father, usually for a weekend or a week. Mr. Krompocker would introduce Ashley to people as his "stepdaughter".

[12] In March 1996, Mr. Krompocker purchased Pamela Krompocker’s interest in the Frolander Bay residence and he and Ms. Gosbjorn and Ashley moved there. Mr. Krompocker became the sole registered owner of the property, but Ms. Gosbjorn became covenantor on the mortgage loan. The lender would not have made the mortgage funds available without Ms. Gosbjorn’s participation in signing for the loan.

[13] For the following period of about 9 years, Mr. Krompocker paid the mortgage on the Frolander Bay residence, and Ms. Gosbjorn looked after all the other bills, such as groceries and utilities.

[14] In 2001 or 2002, Mr. Krompocker's employer closed the log pond, and Mr. Krompocker's job changed to forklift operator.

[15] Prior to January 2003, Mr. Krompocker was athletic. He was a strong and proud man. He was active in hiking, fishing, boating, mushroom picking, and maintaining the Frolander Bay yard and residence. He lifted weights and played baseball.

[16] Mr. Krompocker was injured in an industrial accident at his workplace in January 2003. He suffered a broken neck and other associated physical problems, which limited his ability to engage in the physical activities he had enjoyed prior to the accident. After the accident, Mr. Krompocker became moody, sometimes becoming tearful and angry. He complained of numbness in his entire left side.

[17] Ms. Gosbjorn testified that Mr. Krompocker told people that he had fallen when he slipped on some diesel oil on the work site. Ms Gosbjorn testified that Mr. Krompocker told her that the accident actually occurred when a co-worker fell asleep and drove into Mr. Krompocker. Ms. Gosbjorn testified that Mr. Krompocker told her that he lied about how the accident occurred so that his co-worker would not lose his job.

[18] Dr. Dutoit was the treating family physician for both Mr. Krompocker and Ms. Gosbjorn. In time, Dr. Dutoit observed extreme muscle wasting in Mr. Krompocker’s left arm and leg. He described Mr. Krompocker as suffering from chronic pain and frustration over the lack of improvement and his inability to do what he had done prior to the accident.

[19] Ms. Gosbjorn testified that she bought a van for about $22,000, when DHL purchased Loomis, so that she could continue working. She testified that the van was purchased from the proceeds of a Bank of Nova Scotia line of credit she held jointly with Mr. Krompocker. She testified that after this purchase, she made the payments on the line of credit relating to the van. She testified that Mr. Krompocker seldom used the line of credit and did not make the payments on it. The payments for the joint line of credit were deducted initially from Ms. Gosbjorn’s business account, and later, when her business ended, from her personal account.

[20] Ms. Gosbjorn has suffered from a cocaine addiction, and whether she continues to use cocaine was contentious at trial. At least in late September, 2004, Ms. Gosbjorn was using cocaine.

[21] Ms. Gosbjorn took advances from the joint line of credit to pay for the cocaine she used. The amount she spent on cocaine could not be determined on the evidence.

[22] In March 2005, Mr. Krompocker sold the Frolander Bay residence for $397,000, receiving about $225,000 net of the mortgage and adjustments. That same month, he agreed to purchase the Manson Avenue property in Powell River, B.C. for $215,000. Mr. Krompocker and Ms. Gosbjorn became registered owners of the Manson Avenue property as tenants in common as to an undivided half interest.

[23] Ms. Gosbjorn testified that she thought that if one of them died, the other would receive the property, which is what would happen if they had been joint tenants rather than tenants in common. However, Mr. Johnston testified that he met with Mr. Krompocker and Ms. Gosbjorn, and discussed Mr. Krompocker's desire to have his half share go to his children. Mr. Johnston testified that Mr. Krompocker and Ms. Gosbjorn confirmed that the property should be registered in tenancy in common.

[24] At the time of the purchase of the Manson Avenue property, Mr. Krompocker and Ms. Gosbjorn had enough funds to purchase the property outright. However, they also bought a boat and furniture. As a result, they obtained a mortgage loan for about $30,000 secured against the Manson Avenue property.

[25] Ms. Gosbjorn and Mr. Krompocker continued to arrange their finances so that Mr. Krompocker made the mortgage payments on the Manson Avenue home, and Ms. Gosbjorn paid the line of credit, groceries, and all utilities. Each paid his or her own motor vehicle expenses.

[26] On August 22, 2005, Dr. Dutoit made his first clinical note referring to Ms. Gosbjorn and cocaine use. This was likely the first time Ms. Gosbjorn told Dr. Dutoit that she was using cocaine.

[27] By late 2005, Mr. Krompocker was scheduled to undergo surgery in an effort to correct problems arising from his industrial accident. In October 2005, Mr. Krompocker told his daughter, Denise Hadley, that he and Ms. Gosbjorn were having some hard times and Ms. Gosbjorn had been using cocaine for awhile. He said Ms. Gosbjorn had taken money from their account to pay for the cocaine. He was upset both about the money and about getting Ms. Gosbjorn some help.

[28] Mr. Krompocker maintained a cordial relationship with his estranged wife, Pamela Krompocker. In late October 2005, he told her that he was very concerned about his pending surgery. He also told her that things had been bad in his personal life for awhile, and he knew he would have to make some tough decisions in life after his surgery.

[29] Around October 31, 2005, Mr. Krompocker went by himself to Vancouver for surgery. Mr. Krompocker was very concerned about the possible outcome of the surgery. His son Shane Krompocker brought him home to Powell River. Mr. Krompocker was in a full neck brace following the surgery and needed assistance to dress and shower. Ms. Gosbjorn, Ashley, and Ms. Gosbjorn’s mother, Karen Gosbjorn, helped Mr. Krompocker.

[30] Mr. Krompocker had hoped for significant improvement from the surgery. That did not occur, and he was frustrated. He became upset over small things and at times was agitated.

[31] From at least the time of his surgery until his death, Mr. Krompocker was receiving worker’s compensation benefits. He was unhappy that he could not work.

[32] Once in each of the months of November and December 2005, Mr. Krompocker and Ms. Gosbjorn went together to a licensed professional counsellor, Gary Reid, because of Ms. Gosbjorn’s chemical dependency. Mr. Reid suggested that Ms. Gosbjorn immediately attend a treatment centre. Ms. Gosbjorn declined to do so, on the basis that she could not afford the cost of treatment. There was no discussion about the parties separating.

[33] On November 24, 2005, Ms. Gosbjorn saw Dr. Dutoit, who encouraged her to get treatment for her addiction, and discussed resources with her including a 12-step program. Dr. Dutoit also saw Ms. Gosbjorn on November 28 and November 29, 2005. Ms. Gosbjorn told Dr. Dutoit that there was conflict and stress among the three individuals in the household, being Mr. Krompocker, Ms. Gosbjorn, and Ashley. Dr. Dutoit’s impression was that if he could assist Mr. Krompocker or Ms. Gosbjorn to solve their individual problems, the overall situation would improve.

[34] On at least one occasion, Mr. Krompocker and Ms. Gosjorn attended a Narcotics Anonymous meeting together.

[35] Mr. Krompocker was concerned about his health, his assets and his financial stability in the period before he died.

[36] Mr. Krompocker and Ms. Gosbjorn argued periodically about how to discipline Ashley. Mr. Krompocker was upset that Ashley dropped out of school after finishing Grade 10. In December 2005, Ashley was about 17 years old.

[37] At Christmas 2005, Mr. Krompocker, Ms. Gosbjorn and Ashley went to visit Denise Hadley and her family in Victoria, B.C.

[38] At a date which was not clear in the evidence, but which Ms. Gosbjorn testified was a long time before Mr. Krompocker died, Ms. Gosbjorn told her supervisor at work that she was using cocaine and needed to deal with the problem.

[39] On January 2, 2006, Mr. Krompocker spoke by telephone to Denise Hadley. He told her that he had a fight with Ms. Gosbjorn about how to celebrate New Year's Eve, and that Ms. Gosbjorn and Ashley went out without him. Mr. Krompocker told his daughter that he could not continue the relationship anymore, Ms. Gosbjorn was not getting better, and his financial situation was bad. Denise Hadley told her father to find out exactly how bad his financial situation was.

[40] In January 2006, Ms. Gosbjorn went to Grace House, a safe house near Powell River intended for people in distress due to their environment. Ms. Gosbjorn went there to get away from the situation at home and to collect her thoughts. Ms. Gosbjorn testified that around this time, she and Mr. Krompocker discussed separating and discussed ideas about financial arrangements. She testified that Mr. Krompocker was very concerned about not being able to pay his expenses, which she did not understand because she thought he had good earnings.

[41] Ms. Gosbjorn saw Dr. Dutoit on January 16, 2006, when she was still in Grace House. His impression was that Ms. Gosbjorn obtained some relief from being in Grace House, and that the overall situation was improving.

[42] On January 20, 2006, Mr. Krompocker met with his lawyer, Mr. Johnston. Mr. Krompocker told Mr. Johnston that he loved Ms. Gosbjorn, but he wanted to separate. Mr. Krompocker told Mr. Johnston that he wanted to separate because Ms. Gosbjorn was using cocaine and they were running into debt. Mr. Johnston told Mr. Krompocker to get the financial records together to demonstrate where the money had come from to pay Ms. Gosbjorn's drug debts.

[43] In January 2006, Mr. Krompocker obtained bank statements regarding his and Ms. Gosbjorn’s joint finances, and in particular, their joint line of credit.

[44] Medical records dated in January 2006 suggest that Ms. Gosbjorn reported to a medical professional that she had used cocaine hours previously. At trial, Ms. Gosbjorn denied using cocaine after Christmas 2005.

[45] Ms. Gosbjorn testified that around early February 2006, she told Mr. Krompocker that she would find her own place to rent. She testified that she intended to have some time apart, not to separate, but to work on things and to separate Ashley from Mr. Krompocker. Ms. Gosbjorn testified that she had not formed a firm intention to separate permanently, and that she never discussed being permanently apart from Mr. Krompocker.

[46] Both Mr. Krompocker and Ms. Gosbjorn told Ashley that she and her mother were going to move out of the Manson Avenue property for awhile. They did not discuss this as a permanent situation. Mr. Krompocker cried in a conversation with Ashley, saying that he did not feel like a man anymore, and saying that he used to take care of Ashley and her mother and could not do so any more.

[47] On February 14, 2006, Mr. Krompocker met with Pamela Krompocker. He was very upset and was shaking and crying. He told her things were really bad between him and Ms. Gosbjorn. He said he did not want to live anymore. Pamela Krompocker told her estranged husband that his children and grandchildren and parents needed him. Mr. Krompocker said he just needed to figure out how he was going to manage, implying that he would not kill himself.

[48] Mr. Krompocker told Pamela Krompocker that Ms. Gosbjorn had a cocaine addiction and had incurred debt to purchase drugs. Mr. Krompocker was concerned about his finances. He talked about fixing up the Manson Avenue home and selling it. He told Pamela Krompocker that he was not getting sleep because Ms. Gosbjorn and Ashley would stay up all night, and he would clean up their mess the next day. Pamela Krompocker suggested that he contact his brother, Donald Krompocker, and stay with him for awhile. She gave Mr. Krompocker a note of her cellular telephone number and told him she was going out of town but he could call her at that number.

[49] Mr. Krompocker told Pamela Krompocker that he had asked Ms. Gosbjorn to leave the Manson Avenue property but she refused. He told her he needed to get Ms. Gosbjorn out of the house and out of his life, and he just needed to live somewhere quiet and peaceful. He told her he had obtained bank records and put them in an envelope marked "hold for Terry Krompocker or Denise Hadley only", and put it in his father's safe.

[50] Donald Krompocker spoke to his brother, Mr. Krompocker, later on February 14, 2006. Mr. Krompocker was very upset. He talked about his injury, his relationship with Ms. Gosbjorn, drugs and bills. Mr. Krompocker was agitated and had trouble functioning. He stayed overnight at the home of his brother and his sister-in-law, Carol Krompocker, but he paced rather than sleeping. He told Donald and Carol Krompocker that he wanted to get Ms. Gosbjorn out of the house, repair and sell the house, get his shoulder fixed, get back to work, and have a normal life. He told them that he could not win in fights with Ms. Gosbjorn and Ashley, and that the fights were bitter.

[51] Donald and Carol Krompocker suggested that Mr. Krompocker stay another night with them, but he declined, saying he should go home and convince Ms. Gosbjorn to leave so that he could sell the house.

[52] Donald Krompocker went with Mr. Krompocker while he paid bills. Mr. Krompocker became very upset when he could not find his file of bank records. Donald Krompocker told him they could get the statements any time from the bank. Mr. Krompocker also told his brother that he was concerned that Ms. Gosbjorn would report to the worker's compensation authorities that he did not get hurt the way he did get hurt. Donald Krompocker told his brother that the report of the accident investigation was convincing.

[53] On February 15, 2006, Mr. Krompocker told Denise Hadley that Ms. Gosbjorn was going to move out in a couple of days and he was happy about that. He said they were finished.

[54] In February 2006, Ms. Gosjorn communicated with Greg Lebree about moving into his basement suite. She rented it on a month-to-month basis, although Mr. Labree assumed she would stay for a few years.

[55] Ms. Gosbjorn testified that Mr. Krompocker helped her move articles from the Manson Avenue home to the Lebree basement suite. This occurred on about Saturday, February 18, 2006. Ms. Gosbjorn testified that she took boxes of belongings from Ashley’s younger years, a futon sofa-bed from the home, and her crystal. She testified that she did not take any beds or furniture from the house so that the house would not look empty if it was offered for sale. She testified that she had kitchen utensils that a friend provided her.

[56] Ms. Gosbjorn testified that she saw Mr. Krompocker at least once a day in the period between moving into the rental apartment and Mr. Krompocker’s death. She testified that the purpose of the visits was to talk to each other and straighten things out.

[57] During the February 18 - 19, 2006 weekend, Mr. Krompocker presented Ms. Gosjorn with notes he had drafted for a separation agreement.

[58] On Sunday, February 19, 2006, Mr. Krompocker spoke to Ms. Parise, a neighbour who lived next door to the Manson Avenue home and who was a friend of both Mr. Krompocker and Ms. Gosbjorn. Mr. Krompocker told Ms. Parise that he had fought with Ms. Gosbjorn, but that they were trying to work out things amicably and that they were working towards getting back together. Mr. Krompocker was crying and appeared distraught.

[59] At some point, probably in February 2006, Mr. Krompocker changed the billing information for the utilities at the Manson Avenue property so that they were in his name alone and no longer automatically deducted from Ms. Gosbjorn’s account. Ms. Gosbjorn did not learn about this until after he died.

[60] On Tuesday, February 21, 2006, Mr. Krompocker spoke to Ms. Oram. She and her husband were close friends of Mr. Krompocker and Ms. Gosbjorn, and saw them roughly weekly. Ms. Oram had known Mr. Krompocker for about 27 years. Mr. Krompocker told Ms. Oram that it was for the best that Ms. Gosbjorn and Ashley had moved out, because he and Ashley were going to kill each other if they stayed in the same house. He told Ms. Oram that he loved Ms. Gosbjorn and that they were doing what was best for that time in their lives. He told Ms. Oram that Ms. Gosbjorn needed to get her head together, meaning solve her drug problems, and Ashley needed to do something with her life.

[61] Ms. Oram’s impression from Mr. Krompocker's statements was that Mr. Krompocker and Ms. Gosbjorn were trying to straighten out their lives so that they could carry on as a couple in the future when Ashley was gone. Ms. Oram had the impression that Ms. Gosbjorn was still heavily involved with drugs in February 2006. Ms. Oram estimated that she saw Ms. Gosbjorn use cocaine two or three times a month in the period prior to Mr. Krompocker's death.

[62] Also on Tuesday, February 21, 2006, Mr. Krompocker spoke to Denise Hadley by telephone. He told her Ms. Gosbjorn had thrown something at him during an argument. Denise Hadley told her father he should get a restraining order, and gave him information on how to do that. Mr. Krompocker said he could not leave the home because Ms. Gosbjorn might take personal things and damage the home.

[63] On Wednesday, February 22, 2006, Donald Krompocker went to Mr. Krompocker's home at his request. Mr. Krompocker was very upset, saying Ms. Gosbjorn was not going to leave, his money was gone, and he was worried he would lose his worker's compensation benefits for missing an appointment. Mr. Krompocker said he needed to spend two weeks in the psychiatric ward.

[64] Donald Krompocker took Mr. Krompocker to the emergency ward. While there, Mr. Krompocker calmed down and said he just needed to go home and sleep. Mr. Krompocker said he had thought about suicide. The doctor prescribed sleeping pills, and said Mr. Krompocker should stay with his brother, Donald Krompocker, and then go to a mental health appointment.

[65] Also on February 22, 2006, Mr. Krompocker went to see Gary Reid alone. He told Mr. Reid that he and Ms. Gosbjorn separated on February 17th. Mr. Reid observed Mr. Krompocker to be emotionally distraught, confused and anxious about his marital situation including asset division. Mr. Reid advised Mr. Krompocker to get immediate medical and legal advice. Mr. Reid told Mr. Krompocker that he was aware of resources to help him. Mr. Krompocker denied having suicidal thoughts.

[66] Mr. Krompocker was calmer after speaking to Mr. Reid. At his request, Donald Krompocker took him for a visit with their father. Mr. Krompocker talked about his financial problems and that he might be facing legal costs. His father offered to help him with money, and Mr. Krompocker seemed relieved.

[67] Also on February 22, 2006, Mr. Krompocker visited Ms. Gosbjorn's mother, Karen Gosbjorn. He told her that he and Ms. Gosbjorn had decided to part ways for a little while until Ashley gets older and leaves home, and that he planned to go and tell his own parents.

[68] Also on February 22, 2006, Mr. Krompocker told Denise Hadley that he wanted to go into hospital for two weeks and rest, but they did not have space for him. He said he felt much better after talking to Mr. Reid.

[69] Donald Krompocker took Mr. Krompocker home. Mr. Krompocker initially refused to take sleeping pills for fear of missing an appointment, but ultimately took half of a pill and got some sleep.

[70] On Thursday, February 23, 2006, Mr. Krompocker went to see Mr. Johnston. Donald Krompocker went with him. Mr. Johnston thought Mr. Krompocker was very unsure of himself and nervous. Mr. Krompocker expressed concern about Ms. Gosbjorn running up increasing debt to support her cocaine use. Mr. Krompocker said that Ms. Gosbjorn had moved out on February 17, 2006, and Mr. Krompocker was concerned that had worsened his legal position. Mr. Johnston told him that, in fact, his legal position was improved. Mr. Krompocker was also concerned about some missing financial records. Mr. Johnston told him that duplicates could be obtained.

[71] Mr. Johnston gave Mr. Krompocker a copy of a page of notes that Mr. Johnston made in the meeting. These notes include reference to Ms. Gosbjorn moving out February 17, and that she "only took one-half of her chattels". The notes refer to a proposed court order providing that the house would be fixed up and sold, with the balance held pending accounting of family assets and debts. That is the relief Mr. Johnston suggested Mr. Krompocker should seek from the court, and he agreed.

[72] Mr. Johnston provided the notes to Mr. Krompocker for two reasons: one, so that Mr. Krompocker could discuss the terms of the proposed court order with Ms. Gosbjorn and seek her agreement; and two, so that Mr. Krompocker could collect the necessary documents.

[73] Mr. Krompocker wanted Mr. Johnston to proceed immediately with the lawsuit, but Mr. Johnston had prior commitments such that he could not spend enough time with Mr. Krompocker to do so.

[74] As at the prior meeting, Mr. Krompocker told Mr. Johnston that he loved Ms. Gosbjorn. He said he could not live with her and wanted to separate. Mr. Krompocker also said that Ms. Gosbjorn had threatened to have Mr. Johnston "done in" if Mr. Krompocker went to see him. Mr. Johnston told Mr. Krompocker to come back the next morning if he wanted to go through with the court proceedings.

[75] Mr. Krompocker visited Donald Krompocker that evening. Donald Krompocker wanted Mr. Krompocker to stay overnight that night but he refused, saying he had things to do at home.

[76] Mr. Krompocker told Denise Hadley that he wanted to make Ms. Gosbjorn responsible for the withdrawals, and that Mr. Johnston said that was possible. He also said he wanted Ms. Gosbjorn to agree on the terms of a simple separation, but it did not look like that would occur.

[77] That evening, Mr. Krompocker gave Ms. Gosbjorn a copy of Mr. Johnston’s notes from the meeting that day. Ms. Gosbjorn testified that Mr. Krompocker was very angry that day, and threatened to use her cocaine addiction to obtain his rights. She testified that she responded by telling him that she would tell worker's compensation authorities and everyone else that he had lied about how his industrial accident occurred, and that he responded by angrily “storming off”.

[78] Ms. Gosbjorn testified that she saw Mr. Krompocker again briefly later, and they got into an argument. She testified that Mr. Krompocker left her a voice message later that evening or early the next morning, saying that he loved her, hoped she would have a good life, and that everything was taken care of.

[79] Ms. Gosbjorn testified that she always intended to spend the rest of her life with Mr. Krompocker.

[80] On Friday morning, February 24, 2006, Donald Krompocker telephoned Mr. Krompocker, who said he was looking forward to spending time that morning with their father, and planned to go to a physiotherapy appointment and to Mr. Johnston's office.

[81] Mr. Krompocker called Denise Hadley that morning. He said he was good. He said he had given Ms. Gosbjorn a draft separation agreement to sign which included child support, but she refused to sign it and said he had ruined her life. Denise Hadley told her father that was the drugs talking, and people need to make themselves happy. Mr. Krompocker told Denise Hadley he was going with his father to see Mr. Johnston, and she should call him again at dinner.

[82] Tragically, instead of doing what he told his brother and daughter he would do that day, Mr. Krompocker committed suicide at the Manson Avenue home.

[83] Ms. Gosbjorn went to the funeral home to make arrangements regarding Mr. Krompocker's body, but she was told that she was not legally entitled to look after it. She did not participate in drafting the obituary. She attended the funeral for Mr. Krompocker, and displayed photographs of Mr. Krompocker and his life with her in a memory book. Ms. Gosbjorn and Ashley received numerous sympathy cards regarding Mr. Krompocker’s death. Ms. Gosbjorn was not asked to contribute to any expenses incurred relating to the funeral for Mr. Krompocker, and she did not make any such contribution.

[84] Following Mr. Krompocker’s death, Denise Hadley arranged for the Manson Avenue home to be cleaned up and Ms. Gosbjorn moved back in. The Manson Avenue property was listed for sale in 2006 but was not sold during the listing period. Ms. Gosbjorn has not paid any rent to the estate. Ms. Gosbjorn testified that Mr. Krompocker’s Ford pickup truck and his 12 foot aluminium boat and trailer were removed from the home and were not in her possession.

[85] On March 2, 2006, DHL suspended Ms. Gosbjorn from her position as owner/operator of her route on the basis of her substance abuse problem, and placed her on a conditional medical leave of absence in order to seek treatment. DHL gave Ms. Gosbjorn the option of either completing a substance abuse rehabilitation recovery program within a specific timeline, or quitting her job. She quit. She testified that she did not want to leave her daughter to go away to a two month residential rehabilitation program in the upsetting circumstances at the time.

[86] Denise Hadley spoke to someone from Catalyst Paper who wanted her to attend to represent her father at the party which recognized years of service to the Mill, and said that her husband could come if her brother could not. The person from the Mill also told Denise Hadley that Mr. Krompocker had not chosen a gift, and invited her to do so. After consulting with her brother, Denise Hadley called back and selected a ladies' watch.

[87] Ms. Gosbjorn testified that someone at Catalyst Paper told her that Mr. Krompocker was entitled to a gift to commemorate his 35 years of service, and that he had selected a ladies’ watch for her.

[88] Catalyst Paper held an event celebrating Mr. Krompocker’s 35 years of service. Ms. Gosbjorn was not invited and did not attend. Shane Krompocker and Denise Hadley attended the dinner to represent their father.

[89] Ms. Gosbjorn negotiated a cheque from the Workers Compensation Board payable to the estate of Mr. Krompocker for about $6,000. The bank reversed the deposit and Ms. Gosbjorn made arrangements to replace the money.

[90] The joint indebtedness of Mr. Krompocker and Ms. Gosbjorn to the Bank of Nova Scotia was life insured. Canada Life paid approximately $60,000 of that indebtedness, paying about $34,000 to the line of credit and about $26,000 to satisfy the mortgage on the Manson Avenue home.

[91] Mr. Krompocker’s life insurance provided that Ms. Gosbjorn received one-half of the death benefits, and Denise Hadley and Shane Krompocker each received one-quarter.

[92] Mr. Krompocker had an RSP which passed to Pamela Krompocker because she was the designated beneficiary.

[93] Ms. Gosbjorn and Ashley were covered by Mr. Krompocker’s medical and dental insurance for a period of a year following his death.

[94] The monies and assets of Mr. Krompocker's estate were distributed in 2006. Catalyst Paper paid lump sum pension benefits to the estate in the net amount of $39,960.12 in May 2006. The funds were disbursed to Shane Krompocker and Denise Hadley, without consultation or agreement by Ms. Gosbjorn. Pamela Krompocker also received a share of the pension benefits as had been agreed in the separation agreement, and which was almost double what the estate received.

[95] Ms. Hadley made arrangements for a car to be transferred from Mr. Krompocker's estate to Ms. Gosbjorn in the summer of 2006. Apparently, the transfer documentation was not completed for some time.

[96] Ms. Gosbjorn did not agree to re-list the Manson Avenue property for sale, although Denise Hadley asked her to do so in January 2007. The current value of the Manson Avenue home is $315,000. If Ms. Gosbjorn can afford it, she would like to buyout the estate's interest in the home.

[97] Ms. Gosbjorn testified that by the time of the trial she had stopped using cocaine, and regretted that she had ever used it. She testified that she could not recall when she quit using cocaine, but she guessed it was around November 2005. She testified that she had not used cocaine since Mr. Krompocker died. However, Ms. Oram testified that she saw Ms. Gosbjorn use a casual amount of cocaine about six months prior to her October 25, 2007 testimony, which would have been in April 2007. Ms. Oram testified that she saw Ms. Gosbjorn use cocaine at her home after a visit to the bar, although she testified she has not seen Ms. Gosbjorn use cocaine since that time.

[98] Ms. Gosbjorn is now working for B.C. Ferries.

ANALYSIS

EAA Claim

A. Interpretation of EAA

[99] The chief legal difficulty in this case arises from the apparent conflict between the definition of common-law spouse in s. 1 of the EAA and the provisions of s. 98.

(i) Legislation

[100] The relevant sections of the EAA are as follows:

1 In this Act: ...

"common law spouse" means either

...

(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;

"spouse" includes a common law spouse;

...

84 If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person's estate must be distributed per stirpes among the issue.

85(1) In this section, "net value" means the value of an estate wherever located, both in and out of British Columbia, after payment of the charges on it and the debts, funeral expenses, expenses of administration and probate fees.

(2) This section applies if an intestate dies leaving a spouse and issue.

(3) If the net value of the person's estate is not greater than $65,000, the estate goes to the spouse.

(4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.

(5) After payment of the sum of $65 000, the residue of the estate goes as follows:

...

(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.

...

85.1 For the purposes of section 85, if 2 or more persons are entitled as a spouse they share the spousal share in the estate in the portions determined by the court as the court considers just.

...

96 (1) In this section and section 97:

...

"household furnishings" means chattels usually associated with the enjoyment by the spouses of the spousal home;

"spousal home" means

(a) a parcel of land that is

(i) shown as a separate taxable parcel on a taxation roll for the current year prepared under the Taxation (Rural Area) Act, or on an assessment roll used for the levying of taxes in a municipality, and

(ii) has as improvements situated on it a building assessed and taxed in the current year as an improvement, in which the deceased and his or her spouse were ordinarily resident, owned or jointly owned by the deceased, and not leased to another person, or ...

(2) Despite section 95, and in addition to any other provision in this Part, but subject to section 98, in an intestacy,

(a) except where it would otherwise go under this Part to a surviving spouse, the spousal home devolves to and becomes vested in those persons by law beneficially entitled to it and, subject to the liability of the land comprising the spousal home for foreclosure or the payments of debts, those persons must hold the spousal home in trust for an estate for the life of the surviving spouse, or so long as the surviving spouse wishes to retain the estate for life, and

(b) the household furnishings go to the surviving spouse.

(3) This section applies to the estate of a person who dies on or after April 1, 1972.

...

98(1) In an intestacy, unless the court on application orders otherwise, the surviving spouse takes no part of the deceased spouse's estate if the spouses

(a) had, immediately before the death of one spouse, separated for not less than one year with the intention of living separate and apart, and

(b) had not during that period lived together with the intention of resuming cohabitation.

[101] Sections 8 and 12 of the Interpretation Act, R.S.B.C. 1996, c. 238, are as follows:

8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

12 Definitions or interpretation provisions in an enactment, unless the contrary intention appears in the enactment, apply to the whole enactment including the section containing a definition or interpretation provision.

(ii) Position of the parties

[102] How can a separated common law spouse obtain the benefit of s. 98 of the EAA, which applies to all spouses, when the definition in s. 1 requires cohabitation in a marriage-like relationship for at least two years "immediately" before the other person's death?

[103] The plaintiff argued that a common law spouse must be entitled to the benefit of s. 98, because of the right to equality under s. 15(1) of the Canadian Charter of Rights and Freedoms ("Charter"). She argued that therefore the reference to "immediately" must mean immediately prior to any separation considered in s. 98.

[104] The defendant argued that a common law relationship exists only through continued cohabitation, and therefore ends on separation. This would have the effect that common law spouses could not be separated and therefore s. 98 has no application to common law relationships.

(iii) Case law

[105] In the recent decision of Austin v. Goerz, [2007] B.C.J. No. 2546 (QL), 2007 BCCA 586, the Court of Appeal considered the definition of common law spouse in the EAA. In that case, the issue was whether Ms. Goerz was a common law spouse under the EAA of the deceased, Mr. Austin. The court held that Ms. Goerz did fall within that definition, even though Mr. Austin lacked capacity to marry, and neither she nor Mr. Austin was financially dependent on the other.

[106] While the court did not consider the issues relating to s. 98 of the EAA, significant portions of the decision are instructive.

[107] In Austin, the court said as follows concerning the approach to statutory interpretation:

[19] The modern approach to statutory interpretation is well known, namely, that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87, cited most recently in ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4 at para. 37.

[20] In addition, s. 8 of the Interpretation Act, R.S.B.C. 1996, c. 238, directs that, “every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

[108] The court reviewed the evolution of the definition of common law spouse in paras. 22 through 26 and 29, as follows:

[22] An examination of the evolution of a provision can shed light on legislative purpose and intent: R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56 at para. 33; McDiarmid Lumber Ltd. v. God’s Lake First Nation, [2006] 2 S.C.R. 846, 2006 SCC 58 at para. 46; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62 at para. 17. Accordingly, I will review the changes leading to the present version of the Estate Administration Act and several other statutes containing the expression “marriage-like relationship.”

[23] The provisions of the Estate Administration Act relevant to this appeal can be traced back to the Destitute Orphans Act, S.B.C. 1877, c. 28. This statute provided that if a man died intestate, then a judge of the Supreme Court of British Columbia could order the payment of money out of his estate for the benefit of any surviving concubine or illegitimate children. No payment could exceed the greater of $500.00 or ten percent of the net value of the estate. Section 1 read, in part:

Where any man shall die intestate in the Province of British Columbia, leaving him surviving a concubine who may at the time of his death be actually maintained by him or under his protection, or leaving him surviving any illegitimate child or children under the age of 16 years, reputed to be by him begotten on any woman, and at the time of his decease maintained by him or under his protection, or for the support, maintenance, or advancement of which child he shall have made any provision within the twelve months next before his decease . . . .

[24] The Destitute Orphans Act was incorporated into the Intestates Estate Act, R.S.B.C. 1897, c. 106. Although the name of the statute changed over time the provisions were carried forward and eventually became Part V of the Administration Act, R.S.B.C. 1960, c. 3.

[25] Part V of the 1960 Administration Act was repealed by An Act to Amend the Administration Act, S.B.C. 1972, c. 3. The expression “concubine” was replaced by “common law spouse” which was defined in s. 91, to mean:

[E]ither a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or a person who has lived and cohabited with another person as a spouse and has been maintained by that other person for a period of not less that two years immediately preceding his death.

[26] The definition of “common law spouse” immediately prior to the one at issue on this appeal is found in the Estate Administration Act, R.S.B.C. 1996, c. 122. For ease of reference and comparison I will set it out next to the current version:

1996 Version

Current Version

“common law spouse” means either

(a) a person who is united to another by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has

(i) lived and cohabited with another person as a spouse, and

(ii) been maintained by that other person for a period of not less than 2 years immediately before the other person’s death.

“common law spouse” means 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

[Emphasis added]

...

[29] To appreciate how the Legislature changed the definitions it is helpful to examine a representative sample of the statutes affected by the 2000 amendments:

1996 Version

Current Version

Family Compensation Act, R.S.B.C. 1996, c. 126, s. 1

“spouse” means

(a) a husband or wife of the deceased, or

(b) a person who lived with the deceased as the husband or wife of the deceased for a period of not less than 2 years ending no earlier than one year before the death of the deceased.

Small Business Venture Capital Act, R.S.B.C. 1996, c. 429, s.1(1)

“spouse” means a person who is

(a) married to another person, or

(b) living with another person as husband and wife and has lived as such for a continuous period of 6 months.

Forest Act, R.S.B.C. 1996, c. 157, s. 53(1)

“spouse” means each of 2 persons who

(a) are married to each other, or

(b) are living together as if married, having done so continuously throughout the immediately proceeding 2 years.

Wills Variation Act, R.S.B.C. 1996, c. 490, s. 1

No definition of “spouse”

“spouse” means a person who

(a) was married to the deceased at the time of death, or

(b) lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death.

“spouse” means a person who

(a) is married to another person, or

(b) 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 continuous period of 6 months.

“spouse” means a person who

(a) is married to another person, or

(b) 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 been living and cohabiting in that relationship for the immediately preceding 2 years.

“spouse” means a person who

(a) is married to another person, or

[Emphasis added]

[109] In Austin, the court referred to consistency in interpretation, and what was said in legislative debate, in paras. 31 and 33 through 36, as follows:

[31] As discussed by Ruth Sullivan in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002), there is a presumption that when a legislature uses the same words in several statutes it intends them to have the same meaning each time. This is referred to as “The Presumption of Consistent Expression”: at 162 - 167.

[33] Although, as noted by Rothstein J. in A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 SCC 42, 2007 D.T.C. 5527 at para. 12, legislative debates “may or may not reflect the parliamentary intention to be deduced from the words used in the legislation”, the statements made by the respective Attorneys General of British Columbia in introducing the amending acts are consistent with what is evident on the face of them.

[34] The Honourable Ujjal Dosanjh, Q.C., in introducing Bill 100 (i.e., the 1999 Act), stated:

The Definition of Spouse Amendment Act, 1999, contains amendments that will modernize selected provincial legislation by expanding the definition of spouse to include persons in a marriage-like relationship, including marriage-like relationships between persons of the same sex. The Cemetery and Funeral Services Act, the Coroners Act, the Estate Administration Act, the Family Compensation Act and the Wills Variation Act are amended to include in the definition of “spouse” a relationship between a man or a woman living in a marriage-like relationship with either a member of the opposite sex or the same sex for a period of not less that two years.

(British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), Vol. 16, No. 21 (8 July 1999) at 14228.)

[35] Almost a year later, the Honourable Andrew J. Petter, Q.C., said this in introducing Bill 21 (i.e., the 2000 Act):

I’m pleased to introduce the Definition of Spouse Amendment Act, 2000. This bill amends a number of British Columbia Statutes to extend the rights and obligations of common-law couples to same-sex couples. In particular, the bill amends the definition of spouse in those statutes that already apply to common-law relationships, so that same-sex relationships are included, and builds on earlier legislative enactments that were brought forward to achieve the same objective.

...

Finally, the bill amends the wording of statutes that already refer to all three types of spouse to ensure that a consistent definition is used throughout British Columbia legislation.

(British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), Vol. 20, No. 9 (12 June 2000) at 1642)

[36] In any event, even absent omnibus amending legislation, in construing the expression “marriage-like relationship” in the Estate Administration Act, I would have had regard to statutes using identical or similar wording to define relationships corresponding to marriage, with a view to arriving at a harmonious interpretation: see McEvoy v. Ford Motor Co. (1988), 31 E.T.R. 55 (B.C.S.C.) at 59, 60, affirmed (1992), 63 B.C.L.R. (2d) 397 (C.A.), wherein Gibbs J., as he then was, in interpreting the definition of “spouse” in the Family Compensation Act, R.S.B.C. 1979, c. 120, considered the definitions in the Estate Administration Act, R.S.B.C., 1979, c. 114, and Family Relations Act, R.S.B.C. 1979, c. 121.

[110] One of the reasons that the court in Austin held that it was not necessary that the spouses have capacity to marry was that at the time of enactment of relevant legislation, same-sex couples were understood to lack the ability to legally marry. In addressing that argument, the court said as follows at para. 48:

...Given that the Legislature intended the expression “marriage-like relationship” to apply to cohabiting, same-sex couples who could not marry, it would be incongruous to attribute to it an intention to exclude comparable living arrangements between opposite-sex couples who could not marry. This would defeat the object of the legislation, which is to extend certain rights and obligations to all persons living in marital-equivalent relationships.

[111] The defence relied on the decision of Mr. Justice Hood in Einfeld v. Bellrichard, [2001] B.C.J. No. 199, 2001 BCSC 92. In that case, the sole issue was whether Ms. Einfeld was the spouse of the deceased, Mr. Bellrichard, under the provisions of the Wills Variation Act, R.S.B.C. 1960, c. 490 ("1960 WVA"). The parties there began to live and cohabit with each other in a marriage-like relationship in November 1996. The relationship was rapidly deteriorating in 1999, and in August of that year Mr. Bellrichard moved out of the home. The parties did not see each other from late August 1999 until Mr. Bellrichard's death on March 10, 2000. Accordingly, the parties lived together for 2¾ years, and had been separated for six or seven months before Mr. Bellrichard's death.

[112] Mr. Justice Hood held that Ms. Einfeld was not a "common law spouse" under the 1960 WVA. He held that the marriage-like relationship was over before and at the time of Mr. Bellrichard's death.

[113] Although it was the 1960 WVA which Mr. Justice Hood was considering in Einfeld, as set out in para. 11 of his reasons for judgment:

Counsel agreed that the applicable definition of 'spouse' is that contained in the [EAA], which was 'read into' the Wills Variation Act by Scarth J. of this court in Grigg v. Berg Estate, [2000] 31 E.T.R. (2d) 214.

[114] Accordingly, Mr. Justice Hood was construing legislation identical to that under consideration in the instant case. However, the provisions of s. 98 of the EAA are not referred to in Einfeld.

[115] Mr. Justice Hood's reasons for judgment include the following, at para. 26:

[26] In my opinion there is still a vast difference between being married and living together in a marriage-like relationship. There are still substantial risks involved if the relationship is a common law one, although various Acts seem to be reducing those risks to some extent. In any event, as I have said, I do not accept Mr. Oliver's submission that the Act is intended to make a common-law relationship equal in all respects to a legal marriage. And I do not find it helpful to compare the two unions in determining the issue before me.

[116] Of course, in making this comment, Mr. Justice Hood did not have the benefit of the later decision of the Court of Appeal in Austin. As quoted above, para. 48 of the reasons for judgment in Austin provide that the object of amending the legislation is "to extend certain rights and obligations to all persons living in marital-equivalent relationships".

[117] The Supreme Court of Canada has suggested that distinguishing between couples on the basis of whether they are legally married or not fails to accord with social values or realities. See for example, the quotation below from para. 15 of Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357.

[118] Charter values inform statutory interpretation where genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14.

[119] In Grigg, supra, Scarth J. considered whether s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490 ("1996 WVA"), infringed the right to equality under s. 15(1) of the Charter because it gave the right to seek relief under the Act to a testator's wife, husband or child, but did not give the same right to a person who was in a marriage-like relationship with a testator. Scarth J. concluded that the (then-existing) definition in the 1996 WVA infringed s. 15(1) of the Charter because it discriminated against unmarried partners by denying to them a benefit of the law which was available to married partners.

[120] The defence also relied on the decision in Hodge. In that case, the Supreme Court of Canada considered entitlement to a survivor's pension under the Canada Pension Plan. The Supreme Court of Canada concluded that former married spouses and former common law spouses were treated the same way under the legislation, and so there was no discrimination. It held that it was an error to compare a former common law spouse with a separated married spouse for the purpose of the Charter analysis.

[121] Ms. Hodge had lived in a common law relationship with the deceased for 21 years, ending in February 1993, when she left because of his alleged verbal and physical abuse. A brief reconciliation one year later, in early 1994, failed. When she left for good in February 1994, she intended to and did end their relationship, and left him finally and permanently.

[122] Binnie J. for the court, wrote as follows at paras. 15, 40-42 and 45-47:

[15] The prevalence of common law relationships is part of our social reality, as the Court noted almost a decade ago in Miron v. Trudel, [1995] 2 S.C.R. 418, per McLachlin J., as she then was, at para. 155:

Of late, legislators and jurists throughout our country have recognized that distinguishing between cohabiting couples on the basis of whether they are legally married or not fails to accord with current social values or realities.

...

[40] Section 44(1)(d) of the CPP targets the benefit (survivor's pension) at surviving "spouses". The statutory definition includes common law spouses as well as married spouses. This presents a problem for the respondent. She was not in any sort of relationship at all with the deceased at the date of his death. The survivor's pension was denied on the basis that the respondent was not, at the relevant time, a spouse. It was not denied, as it was in Miron, because at the relevant time she was a common law spouse rather than a married spouse.

[41] As stated, the respondent acknowledges that when she left the deceased in February 1994, she intended to and did terminate their relationship. This is to be contrasted with married spouses whose legal relationship continues to exist and who still have legal obligations to each other despite a separation, and despite any subjective intention on their part to put a de facto end to the marriage.

[42] The respondent terminated cohabitation and cohabitation is a constituent element of a common law relationship. "Cohabitation" in this context is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof. Such periods of physical separation as the respondent and the deceased experienced in 1993 did not end the common law relationship if there was a mutual intention to continue. I agree with the observation of Morden J.A. in Re Sanderson and Russell (1979), 24 O.R. (2d) 429 (C.A.), at p. 432, that, subject to whatever provision may be made in a statute, a common law relationship ends "when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one". On this point, Professor Fodden observes:

... turning to a (constructed) mental phenomenon permits the court to make a decision as to the critical moment a relationship ended without having to place inordinate stress upon any particular event or lack of action. It allows for the bridging of gaps in the relationship as being "brief cooling-off period[s]" and perhaps gives courts some freedom to protract the continuation of cohabitation past the last physical symptom, where to do so might be just.

(S. R. Fodden, Family Law (1999), at p. 60)

...

[45] The respondent does not argue that limiting the survivor's pension to a "spouse" is itself discriminatory. Rather her position, as put by her counsel, is that "Betty Hodge does not compare herself to divorced spouses". In my view, with respect, the proper comparator group in her case is divorced spouses. Beginning in February 1994, there was both physical separation from her common law partner and an intention on her part to make it permanent. At the time of his death, therefore, she was not a "separated" common law spouse but a "former" common law spouse. Former common law spouses, like divorced spouses, are no longer spouses in any legal sense at common law. In neither case are they eligible for a survivor's pension under the CPP.

[46] The respondent relies upon the decision of this Court in M. v. H. In that case, the Ontario Family Law Act provided support remedies on separation to opposite-sex partners (both married and "common law" as therein defined), but not to same-sex partners. The relevant comparison was therefore between "persons in an opposite-sex, conjugal relationship of some permanence" (the comparator group) and the claimant's group of "persons in a same-sex, conjugal relationship of some permanence" (para. 61 (emphasis added)). Here there is a disconnect between the claimant group (former spouses) and the comparator group (existing spouses). In M. v. H., the benefit was made available to persons with the same relevant characteristics as the claimant except for sexual orientation. Here former married spouses and former common law spouses are treated the same.

[47] I appreciate of course that, as Iacobucci J. stated in Law, at para. 59, "[t]he determination of the appropriate comparator, and the evaluation of the contextual factors which determine whether legislation has the effect of demeaning a claimant's dignity must be conducted from the perspective of the claimant." However, the respondent's perspective prior to the death of the deceased was that the common law relationship had ended. The purpose of the survivor's pension is to deal with the financial dependency of a couple who at the date of death are in a relationship with mutual legal rights and obligations. The respondent may have had a measure of financial dependence, but she no longer had any legal relationship. A reasonable claimant in her position would, I think, not feel demeaned by being treated the same as other "former" spouses. In fact, as counsel for the appellant pointed out, the effect of the remedy sought by the respondent would itself create a form of inequality by providing survivors' pensions to former common law spouses that are not available to former married spouses.

(iv) Discussion

[123] To consider the plaintiff's argument that common law spouses must be treated in the same way as married spouses, it is useful to examine how the EAA applies to married spouses when there is an intestacy.

[124] If married and not separated, the surviving spouse is entitled to at least a portion of the spousal share in the estate. If divorced, the former spouse is not entitled to any share in the estate, because the formerly married person is not a spouse. That would be the effect even if the divorce occurred during the first year after separation. While rare, parties may be divorced within a year of separation if the breakdown of the marriage was established on the basis of adultery or cruelty.

[125] If a couple is legally married, but separated at the time of the death of one of them, the court must undertake a more complex analysis. If the married spouses were separated for one year or more, and the intention of both of them was to live separate and apart, then the surviving estranged married spouse is not entitled to any share in the estate unless the court exercises its discretion to order otherwise. The intention to live separate and apart must be held by both spouses for the s. 98 disentitlement to apply. (See Re Munro (1974), 47 D.L.R. (3d) 625 (B.C.S.C.)). As a result, s. 98 disentitles some but not all separated but still married spouses from taking part in their deceased spouse's estate on an intestacy, subject to the court's exercise of discretion.

[126] Applying s. 98 to common law spouses is more complex, because achieving status as a common law spouse under the EAA depends on cohabiting in a marriage-like relationship for a specified period, and because the end of a common law relationship is not marked by a certain event like a divorce decree.

[127] The plaintiff argued that the legislation should be construed to treat common law and married spouses in the same way. The plaintiff argued that the legislation provides that married spouses can be separated for up to a year prior to the death of the deceased without disentitling the survivor to a share in the intestate's estate, and that common law spouses should also be entitled to separate for a year without becoming disentitled by s. 98.

[128] This would not treat married and common law spouses the same way. It would entitle some former common law spouses to share in the estate, while former married spouses who divorced within a year of separation and within a year of the deceased's death would not be entitled to share in the estate.

[129] In addition, it is difficult to construe the words of ss. 1 and 98 to come to that result. The legislature could have defined spouse as it did in the Family Compensation Act, R.S.B.C. 1996, c. 126, as amended, s. 1, as including a person who "lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least two years ending no earlier than one year before the death". However, instead the EAA definition requires cohabitation for "at least two years immediately before the other person's death".

[130] Even though it is a difficult exercise, it is possible to distinguish between those common law relationships which have ended, and those where the parties are separated but there is continued uncertainty about the future of the relationship. In the former case, the parties cease to be common law spouses. In the latter, they are separated common law spouses, and s. 98 of the EAA can apply to them.

[131] This is consistent with the definition of common law spouse in s. 1 of the EAA. That definition refers to a person who has lived and cohabited in a marriage-like relationship with the deceased for at least two years immediately before the death of the deceased. The expression "live and cohabited...in a marriage-like relationship" is not defined in the EAA.

[132] The leading case in B.C. considering a similar definition is Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264. At issue was whether the plaintiff was entitled to support and maintenance as a spouse under the Family Relations Act ("FRA") and if so, how much was payable.

[133] The FRA at that time defined a spouse as including:

...a man or woman not married to each other, who lived together as husband and wife for a period of not less than two years, where an application under this Act is made by one of them against the other not more than one year after the date they ceased living together as husband and wife.

[134] Lambert J.A., for the court, wrote as follows:

In deciding whether a couple lived together as husband and wife, I would be guided by the scheme and intention of the Act itself. The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s. 57 as are voluntarily undertaken by a married couple. So I would ask whether the unmarried couple's relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been "Yes", then they are living together as husband and wife. If the answer would have been "No", then they may be living together, but not as husband and wife.

Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependant on the other, in accordance with a mutual arrangement.

All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

[135] A comprehensive list of relevant objective factors is set out by Huddart J.A. in dissenting reasons in Takacs v. Gallo, [1998] B.C.J. No. 600 (B.C.C.A.). Newberry J.A., for the majority in Takacs, wrote at para. 53 that:

...subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such.

[136] She wrote at para. 55 that objective factors will be relevant to determining the parties' intentions, but those factors "will rarely be determinative in and of themselves".

[137] The parties agreed that Ms. Gosbjorn and Mr. Krompocker had a 12 year common-law relationship. As suggested in para. 42 of Hodge, "cohabitation" in this context can be defined to mean that there was a mutual intention to continue the relationship, and cohabitation will cease when either party regards the relationship as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.

[138] As discussed in Hodge, use of that analysis for determining the end of the relationship permits the court to make a decision without putting inordinate emphasis on any particular event or lack of action. It allows the bridging of gaps as being brief "cooling off" periods.

[139] In addition, that analysis is consistent with the general public policy in promoting reconciliation, which is reflected in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), particularly at ss. 9 and 10.

[140] A basic principle of the EAA is relief of need. (See Law v. Tretiak (1993), 80 B.C.L.R. (2d) 1). Using the Hodge analysis for determining the end of the relationship is also consistent with the object of relieving the need of an estranged common law spouse, since need is unlikely to end immediately on separation.

[141] This analysis is consistent with the analysis and result in Einfeld. In that case, before Mr. Bellrichard's death, Ms. Einfeld admitted in court documents, including an affidavit, that the relationship was over. Hood J. held that she was not entitled to proceed with a claim under the 1960 WVA to vary Mr. Bellrichard's will because their common law relationship had ended. Ms. Einfeld regarded the relationship as being over, and her evidence in an affidavit demonstrated in a convincing manner that this state of mind was a settled one.

[142] Using the analysis suggested in Hodge, parties cease to live and cohabit in a marriage-like relationship when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one. If the parties separate without either or both of them ending the relationship in that way, s. 98 will apply if they were separated for not less than one year with the mutual intention to live separate and apart.

[143] As a result, separated common law spouses who have not ended the relationship will be treated the same way as separated married spouses who have not ended their relationship by divorce. The fact that one party can end a common law relationship, while ending a marriage requires a divorce decree from a court, arises from the nature of such relationships.

[144] As a result, the next question in this case is whether at the time of Mr. Krompocker's death, the parties had ceased to live and cohabit in a marriage-like relationship, in the sense that the common law relationship had ended. If not, Ms. Gosbjorn is entitled to a share in the estate, because the parties had been separated for only days prior to Mr. Krompocker's death, and the discretionary disentitlement under s. 98 would not occur until the parties were separated for a year.

B. Whether Ms. Gosbjorn and Mr. Krompocker were cohabiting at the time of his death

[145] What is the effect of Ms. Gosbjorn and Ashley staying in the Lebree basement suite for about a week, and Ms. Gosbjorn taking half of her chattels from the Manson Avenue property to that suite?

[146] Ms. Gosbjorn's common law relationship with Mr. Krompocker continued for about 12 years. The parties shared many things in their relationship, including raising Ashley, devoting income to family expenses, engaging in family activities, and sharing liability for the mortgage and line of credit.

[147] Some absences from the matrimonial home do not result in couples ceasing cohabitation. In this case, it was not suggested that the few nights that Ms. Gosbjorn spent at Grace House constituted ceasing to live and cohabit with Mr. Krompocker.

[148] Ms. Gosbjorn's evidence is that she intended the relationship to continue, and that she viewed the separation as a temporary one which was a step to reconciliation. That evidence must be considered with some scepticism, because it is informed by hindsight. This is a case in which the couple was in a difficult situation, and each of them was likely of two minds about whether to separate or stay together. However, the evidence does not demonstrate that Ms. Gosbjorn had a settled intention to separate.

[149] More difficult is the question of determining Mr. Krompocker's intention.

[150] Many witnesses testified about their conversations with Mr. Krompocker in his last days, providing evidence relevant to Mr. Krompocker's intention regarding Ms. Gosbjorn's move to the Lebree basement suite. It was particularly difficult for all of these witnesses to recount this evidence in light of Mr. Krompocker's suicide.

[151] The statements recounted by the various witnesses differed. I was satisfied that the witnesses truthfully recounted their recollection of the conversations.

[152] The evidence suggesting Mr. Krompocker intended to continue his relationship with Ms. Gosbjorn included the following:

(a) Mr. Krompocker told Ashley in February 2006, together with Ms. Gosbjorn, that she and her mother were moving out for awhile, rather than permanently;

(b) Mr. Krompocker told Ms. Parise on February 19, 2006 that he and Ms. Gosbjorn were working towards getting back together;

(c) Mr. Krompocker told Ms. Oram on February 21, 2006 that he loved Ms. Gosbjorn, and gave Ms. Oram the impression that they would remain a couple; and

(d) Mr. Krompocker told Karen Gosbjorn on February 22, 2006 that he and Ms. Gosbjorn were parting ways for a little while, until Ashley left home.

[153] The evidence suggesting Mr. Krompocker intended to end his relationship with Ms. Gosbjorn included the following:

(a) Mr. Krompocker told Mr. Johnston on January 20, 2006 and February 23, 2006, that he loved Ms. Gosbjorn, but could not live with her and wanted to separate. Mr. Krompocker hired Mr. Johnston to act for him in connection with a separation agreement and related court orders;

(b) Mr. Krompocker told his estranged wife on February 14, 2006 that he needed to get Ms. Gosbjorn out of the house and out of his life; and

[154] It could be argued that Mr. Krompocker was withholding the true extent of the relationship breakdown from Ashley, Ms. Parise, Ms. Oram, and Karen Gosbjorn in order to make it easier for them to accept the separation. On the other hand, it could also be argued that Mr. Krompocker told his ex-wife, daughter and lawyer what he thought they wanted to hear, or what he was trying to convince himself, rather than the truth.

[155] Separation is a difficult and confusing time, when people may be undecided or in conflict about what to do. It is difficult to determine someone's true intention at such a time even when they are not dealing with the difficult problems facing Mr. Krompocker of chronic pain, drug abuse, and financial problems.

[156] Mr. Krompocker was clearly troubled for some months before his death, about his health, Ms. Gosbjorn's addiction, financial issues, and perhaps his relationship with Ashley as well. The steps Mr. Krompocker took in his last few weeks suggest that he was determined to reorganize the parties' financial situation. However, the steps Mr. Krompocker took fall short of demonstrating in a convincing manner that he had a settled intention to end his relationship with Ms. Gosbjorn.

[157] The fact that Mr. Krompocker committed suicide within days of the separation and following his visit to the emergency ward and to Mr. Reid suggests that Mr. Krompocker had an unsettled state of mind. While Ms. Gosbjorn hoped that moving into the basement suite would ease things for all parties, the evidence suggests that Mr. Krompocker became increasingly troubled during the period that she was living in the basement suite with Ashley.

[158] The parties had lived together for at least 12 years in a marriage-like relationship. Despite Ms. Gosbjorn's partial move to the basement suite a few days before Mr. Krompocker's death, the relationship continued and the parties continued to live and cohabit in a marriage-like relationship until Mr. Krompocker's death, because neither Mr. Krompocker nor Ms. Gosbjorn demonstrated that he or she had a settled intention to end the relationship.

UNJUST ENRICHMENT

[159] Because of my conclusion on Ms. Gosbjorn's claim under the EAA, it is not necessary to address the issue of unjust enrichment.

SUMMARY

[160] In summary, Ms. Gosbjorn is entitled to the declaration that she is a surviving "spouse" of Mr. Krompocker as defined in s. 1 of the EAA. Ms. Gosbjorn is entitled to the entire spousal interest in Mr. Krompocker's estate pursuant to ss. 85 and 96 of the EAA, because the only other "spouse", Pamela Krompocker, relinquished her claim to Mr. Krompocker's estate.

[161] It appeared likely that counsel could resolve any accounting issues arising from this conclusion. If they cannot be resolved between counsel, the parties have liberty to apply through the registry for a further hearing or written submissions to address such issues.

[162] Unless the parties have submissions to make as to costs, Ms. Gosbjorn is entitled to her costs at Schedule B, for matters of ordinary difficulty.

"The Honourable Madam Justice Gray"

Citation:	*Gosbjorn v. Hadley,*
	2008 BCSC 219