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Married Or Not? Spousal Support In BC

Married or Not? Spousal Support in BC

Post Series: Family Law

When a couple is legally married and there’s a marriage certificate, there is little doubt as to the nature of the relationship and the rights that the spouses have should the relationship dissolve. Similar rights, like spousal support, are also available in British Columbia to people who live together in a “marriage-like relationship” for two or more years. However, sometimes there is disagreement as to the nature of the relationship and spousal status of the parties. In these cases, the court will consider the intentions and evidence of the parties and make a judgement about the nature of the relationship. This issue was recently before the BC Supreme Court in the case Kennedy v Smith, 2022 BCSC 1622, where the court considered how the law determines spousal status when the parties disagree on the legal nature of their relationship.

The case highlighted the need for unmarried couples who choose to live together to consider what may happen with their assets should they separate in the future and the value of having a formal agreement in place.

Kennedy v Smith (2022) Case Facts

The Claimant, Ms. Kennedy, was seeking to establish that she had spousal status and that she had previously lived in a marriage-like relationship with the defendant, Mr. Smith. Ms. Kennedy was seeking to have a division of family property and spousal support from Mr. Smith under the Family Law Act 2011. The main concern of the court in determining Ms. Kennedy’s spousal status was the nature of her cohabitating relationship to Mr. Smith and if they had lived in a marriage-like relationship for the purposes of the Family Law Act. 

The facts of this case are rather strange, and the judge highlighted that the claimant’s submissions lacked credibility. Mr. Smith and Ms. Kennedy rented apartments in the same building, and became acquainted with one another in 1999. Ms. Kennedy claimed that their relationship was romantic, and that Mr. Smith had moved in with Ms. Kennedy in 2008 and only used his apartment to store his belongings. However Mr. Smith absolutely denied romantic involvement with Ms. Kennedy, denied that he lived with Ms. Kennedy and had his brother testify that he had often visited Mr. Smith’s apartment, and it was clear he was living in the unit as normal during the period in question. 

Was the House a Marital Asset?

People who live together should draft a cohabitation agreement or a relationship agreement to clearly set out their intentions for the property and prevent future conflict.

Eventually both Ms. Kennedy and Mr. Smith moved out of the apartment building, and over many years lived separately at various addresses until at least 2011. At that time, Mr. Smith purchased a house and invited Ms. Kennedy to live with him as she was being evicted from her apartment. Mr. Smith bought the house with a mortgage of nearly $500,000 and paid the entire down payment himself. The house was registered jointly between Mr. Smith and Ms. Kennedy, meaning that the whole property belonged equally to both parties and they did not hold individual shares in the value of the house.

In their time living in the house, Mr. Smith was the only one to make payments on the mortgage although Ms. Kennedy managed some of the utility bills and paid for some household expenses. The nature of their cohabitating relationship was in dispute with Ms. Kennedy claiming that the pair shared a bedroom and often gave each other gifts, and that they shared a close relationship with each other’s families. Ms. Kennedy also testified that Mr. Smith had taken her on a vacation to celebrate her birthday and that they travelled together frequently. Mr. Smith denied most of Ms. Kennedy’s testimony regarding the nature of their relationship.

The court had to determine the credibility of the testimony that was provided to decide if the relationship was marriage-like for the purposes of the Family Law Act.

Evaluating Credibility of Witnesses

In the decision, the judge determined that Mr. Smith’s evidence was more credible than that of Ms. Kennedy. The judge came to this conclusion because Ms. Kennedy’s evidence was inconsistent and often contradictory while Mr. Smith’s evidence was consistent and did not contradict itself.

In this case, the judge considered that the determination of spousal status must consider both fact and law and does not rely on a set of simple criteria or checklist. To determine spousal status, the court considered both the couple’s intentions and their behaviour as objective evidence. The judge pointed out that Ms. Kennedy’s evidence indicated that she believed she was in a marriage-like relationship for almost the entire time she knew and lived with Mr. Smith. In contrast, Mr. Smith’s evidence indicated that he did not believe he was in a marriage-like relationship with Ms. Kennedy.

The Court’s Decision- Spousal Support

As a result, objective evidence was necessary to establish spousal status. As Mr. Smith’s evidence was preferred to Ms. Kennedy’s evidence, the judge found that the elements of a marriage-like relationship were not sufficiently present to establish spousal status. The judge decided that the Family Law Act was not invoked on the facts, and Ms. Kennedy was not entitled to her requests of division assets and spousal support. 

It is not uncommon in family law matters for opposing parties to give contradictory evidence of the events. This can complicate court decisions significantly as the credibility of the evidence must also be decided on. In this case, because the evidence given by Ms. Kennedy lacked credibility and her claim for spousal status was dismissed. Had Ms. Kennedy’s evidence been more credible, it is likely that the court would have found evidence of a marriage-like relationship and granted Ms. Kennedy some division of family assets and/or spousal support from Mr. Smith. 

If you are concerned about shared assets in a marriage-like relationship, it is important to make a plan as soon as possible. Couples or friends sharing assets or cohabitating should always communicate their intentions for the property in writing to avoid conflict in the future. If you live with a friend or partner in a shared home and are concerned for the future, contact an experienced contract lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at

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