There are a number of factors that could determine whether or not a couple decides to get married. Many people remain in long committed relationships that resemble marriage in everything but name. While many of the rights associated with marriage also apply to people in common-law relationships, there are some exceptions or difficulties that may arise. Take for example a situation recently heard by the Court of Appeal for Ontario where a surviving member of a relationship had to try to prove to the courts that there was a relationship when her partner left her out of his will.

Great affection does not equal a committed relationship

The original trial was heard by a motion judge, who asked the question, “Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?  In my view the answer is that she cannot.”

The situation arose after a mother and daughter, who claimed the mother had been in a romantic relationship with the deceased, found themselves left out of his will. The mother claimed her and the deceased had been in a committed relationship from the summer of 2009 through to his death on December 31, 2016. However, the will, dated May 9, 2012, made no mention of her.

When the mother found out her and her daughter were not in the will, they brought a motion to challenge it. However, the motion judge did not find that the relationship described by the mother was enough to establish a committed relationship, writing,

“There is no corroborated evidence that (the deceased) demonstrated a settled intention to treat (the mother) as a member of his family.  While he clearly had great affection for her and demonstrated a level of generosity towards her, he was generous with others and Andreja was never introduced to any of (the deceased’s) own family (including his children), let alone introduced as a daughter of his family.”

The motion judge looked at the lifestyle of the deceased and determined he was a “charming” and “charismatic” individual, noting that he had developed close relationships with several women over the years, with some of them being sexual and some not.

The appeal

The mother and daughter appealed the motion judge’s decision, arguing he placed too much emphasis on the fact that the mother did not live with the deceased. While the court agreed that a great deal of emphasis was placed on that factor, it wasn’t the only consideration taken into account. The court wrote,

“(The motion judge) also took into account other factors. He looked at the factor of fidelity in the relationship, the financial arrangements, the overall nature of the relationship, and their alleged common life together. In addition, he found there were clear breaks in the relationship on two different occasions. He supported his findings with careful reference to the evidence.”

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.