Property division, governed by Part 5 of the Family Law Act, applies to married couples and to those who have lived in a marriage-like relationship for at least two continuous years. The definition of a “marriage-like” relationship has evolved over the years, challenging traditional norms and embracing the diversity of modern unions.

In Molodowich v. Penttinen 1980 CanLII 1537, the court came up with a checklist of behaviours that defined a “marriage-like” relationship. However, in recent years, courts cautioned against a checklist approach and have opted for a holistic approach. The court in Weber v. Leclerc, 2015 BCCA 492, for example, refer to the Molodowich factors as “helpful indicators of the sorts of behaviour that society at a given point in time associates with a marital relationship.”

Recent legal interpretations, exemplified in cases such as Han v Dorje, 2021 BCSC 939 and Climans v. Latner, 2020 ONCA 554 showcase a continued departure from traditional conventions and demonstrate that an inclusive and holistic approach is here to stay.

Han delves into the territory of online relationships and is emblematic of the changing narrative surrounding marriage-like relationships. Despite the parties having met only once and never cohabiting, and notwithstanding that the vast majority of the Molodowich factors were not present, the court determined that it was premature to dismiss a potential claim that the parties were in a “marriage-like” relationship.

The Ontario Court of Appeal in Climans confirmed that a lack of a shared residence is not determinative of the issue of cohabitation, challenging preconceived notions and highlighting the importance considering the parties’ behaviours. In Climans, despite residing in separate homes, the parties’ intertwined lives, shared vacations, and financial interdependence led the court to define the parties’ relationship as “marriage-like”.

The Holistic Approach: Navigating the Grey Areas

There is no one-size-fits-all for a marriage-like relationship and no definitive classification system for relationships. Indicias that were once necessary for marriage-like relationships to exist are no longer essential factors. For example, the absence of a sexual relationship on its own will not preclude a finding of a marriage-like relationship (see: Smith v. Lanthier, 2017 BCSC 146). Economic dependence or interdependence, while significant, is no longer an essential factor as held by the court in Weber.

What is relevant to the definition of a relationship as “marriage-like”? The answer will depend on the individual circumstances of the parties and evidence will play an important role. The message relayed by recent court decisions is that a holistic approach in determining the nature of a relationship must be applied.

As indicated by the court in Weber, the question of whether a relationship is “marriage-like” will come down to the parties’ intentions as well as the objective evidence of the parties’ lifestyles and interactions. Courts will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

In the words of Master Elwood in Han, “the traditional factors are not a mandatory check-list that confines the ‘elastic’ concept of a marriage-like relationship. And if the COVID pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds.”

As family dynamics continue to evolve, the legal system must adopt a flexible and inclusive approach to ensure equitable outcomes for all parties involved.