Jones v. Davidson

2022 BCCA 31 Jones v. Davidson

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Jones v. Davidson, 2022 BCCA 31 Date: 20220131 Docket: CA47243 Between: Eric Jones Respondent (Plaintiff) And Tracey Ann Davidson and Tracey Ann Davidson in her capacity as Administratrix of the Estate of Larry Daniel Jones, Deceased Appellants (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Butler The Honourable Mr. Justice Marchand On appeal from: An order of the Supreme Court of British Columbia, dated September 15, 2020 (Jones v. Davidson, 2020 BCSC 1371, Vancouver Docket S185623). Counsel for the Appellants: L.D. Anjos Counsel for the Respondent: J.M. Richter A. James Place and Date of Hearing: Vancouver, British Columbia September 24, 2021 Place and Date of Judgment: Vancouver, British Columbia January 31, 2022 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Mr. Justice Butler The Honourable Mr. Justice Marchand Summary: The appellant appeals from an order revoking a grant of letters of administration made in her favour, granting letters of administration to the respondent, and awarding other ancillary relief. The appellant was in a romantic relationship and cohabited with the deceased at the time of his death; the respondent is the deceased's estranged son. The appellant received the grant based on a statutory declaration that she and the

deceased were spouses, but she admits the declaration contained an error. The trial judge concluded that the appellant and the deceased were not spouses under the Estate Administration Act, as they were not in a qualifying relationship for the two years preceding his death. Held: Appeal dismissed. Whether someone is legally considered a spouse is a highly fact‑specific determination, requiring a judge to consider both subjective and objective evidence, and is not readily disturbed on appeal. The judge here did not misapprehend or ignore evidence and did not err in his approach to assessing the indicia of a marriage‑like relationship. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] Larry Jones died intestate on March 18, 2014. At the time of his death, and for a period of time before, he had resided with the appellant Tracey Davidson in his home in Terrace, British Columbia. They were not married. [2] Larry Jones came to Canada from the United States in the early 1970s, leaving behind his infant child Eric Jones. Eric Jones was Larry Jones' only child and is the respondent. For ease of reference, I shall refer to Larry and Eric Jones as Mr. Jones and Eric Jones respectively. [3] Ms. Davidson obtained a grant of letters of administration in respect of Mr. Jones' estate soon after his death. In applying for the grant, she swore a statutory declaration stating

that she was Mr. Jones' common law spouse within the meaning of the Estate Administration Act, R.S.B.C. 1996, c. 122, at the time of his death. [4] Eric Jones contested the grant of letters of administration. He agreed his father and Ms. Davidson were in a common law relationship when his father died, but said that the relationship was not of sufficient duration to qualify Ms. Davidson as a common law spouse under the Act. [5] After a seven‑day trial before Mr. Justice Mayer, the judge agreed with Eric Jones and found Ms. Davidson had not brought herself within the parameters of common law spouse for the purposes of the Act. The judge revoked the grant of letters of administration that had been made in Ms. Davidson's favour, and made several ancillary orders including an order for costs against Ms. Davidson in favour of Eric Jones. Ms. Davidson appeals from that order. [6] For the following reasons, I would not interfere with the order. I conclude that this is a highly fact dependent case which, if it were to be won by Ms. Davidson, was to be won at trial. Discussion [7] By s. 6 of the Act, a spouse may apply for a grant of letters of administration in respect of an estate. As of March 2013, s. 1 of the Act defines spouse as including a common law spouse and defines common law spouse in these terms: "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 (b) a person who has lived and cohabited with another person in a marriage-like relationship for a period of at least 2 years immediately before the other person's death; ... "spouse" includes a common law spouse; [8] Because Mr. Jones died on March 18, 2014, the definition required Ms. Davidson to establish that she was Mr. Jones' common law spouse on or prior to March 18, 2012. [9] Ms. Davidson's statutory declaration states that she had lived and cohabited with Mr. Jones from September 15, 2010, to March 18, 2014, in a marriage‑like relationship. She agrees that the stated date of September 15, 2010 is incorrect, and she would substitute in its place the fall of 2011 or, failing that, February 2012. [10] Ms. Davidson and Eric Jones each testified at trial, as did several friends and associates of Mr. Jones and of Ms. Davidson. After canvassing the legal principles and reviewing the evidence, the judge found that Mr. Jones and Ms. Davidson were in a romantic relationship starting in February 2012, but did not have a marriage‑like relationship until April 30, 2013: [98] I find that, starting in February 2012, to the world at large Tracey Davidson and Larry Jones had become "boyfriend and girlfriend" but were not acting as a committed couple at that time. I find that they did not comport themselves in

this manner until after April 2013 when the following events occurred: a) In May 2013 when Grace Davidson registered for school in Terrace and Larry Jones was listed as her stepfather on her registration documents; b) In October 2013 when Larry Jones revised his Desjardin's health and life insurance coverages at work to include Tracey as his common law spouse and Tracey and Grace as his dependants; and c) In or about early 2014 when Tracey Davidson recorded her marital status on her 2013 income tax return as "common law". [99] In summary, I find on a balance of probabilities that Tracey Davidson and Larry Jones were not in a marriage like relationship until April 30, 2013. On this basis I find that Tracey Davidson has not met her burden to prove that she lived and cohabited with Larry Jones in a marriage-like relationship for a period of at least two years prior to his death on March 18, 2014. She therefore did not fall within the definition of common law spouse set out at s. 1 of the Act at the time of his death. Grounds of Appeal [11] Ms. Davidson contends the judge erred in law by failing to consider, misconstruing, or misapprehending, evidence of the nature, duration and permanence of her relationship with Mr. Jones. She says also that the judge did not consider the evidence in its totality by failing to consider with a modern lens the entire picture of the relationship, as

it emerged from the evidence showing a caring and supportive relationship between Mr. Jones and herself. These failures, she says, were material to the ultimate conclusion, and are fatal to the order. Standard of Review [12] Our task is to determine whether the judge has made an error of the sort that calls for our intervention. This means on questions of law or principle we consider whether the judge was correct. On matters of fact and inferences drawn from the evidence, we apply a deferential standard. Recognizing that fact finding is the province of the trial court, we ask on questions of fact whether the judge has made a palpable (obvious) and overriding (material to the outcome) error. Where the challenge concerns an inference drawn by a trial judge, we ask whether the inference is clearly wrong or unsupported by the evidence. The standard applied to questions of mixed fact and law is the same as applied to questions of fact unless there is an extricable question of principle, in which case we apply a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33. Analysis [13] This appeal concerns the judge's characterization of the relationship between Ms. Davidson and Mr. Jones before March 18, 2014, particularly from the fall of 2011 to March 2012. There is particular emphasis on the beginning of February 2012, as this is the time identified by the judge that Mr. Jones and

Ms. Davidson presented as boyfriend and girlfriend and coincides, for practical purposes, with the last established event that could have been seen as a commencement date of a marriage‑like relationship that satisfies the definition of common law spouse in the Act. In February 2012, Ms. Davidson, with her daughter, travelled north during Ms. Davidson's Capilano University spring break. Ms. Davidson and Mr. Jones spent a weekend of that period in Prince Rupert, British Columbia, while her daughter stayed with a friend, and she and her daughter subsequently stayed with Mr. Jones in Terrace for the balance. Ms. Davidson does not resile from the fall of 2011 as the date by which she was a common law spouse, but says that in any event the common law relationship was established by the end of the February trip. [14] In characterizing the relationship between Ms. Davidson and Mr. Jones, the judge engaged in fact finding and the exercise of judgment in the context of the statutory definition of common law spouse. [15] Apart from the temporal requirement of two years, the s. 1 definition of common law spouse includes three qualifications: the survivor lived with the deceased; the survivor cohabited with the deceased; and the survivor and deceased were in a marriage‑like relationship. [16] Much attention in the jurisprudence has been on the difference, if any, between cohabiting and

being in a marriage‑like relationship, as well as on the content of the words "marriage‑like relationship". Indeed, while Eric Jones submitted that Ms. Davidson could not succeed because the parties had not resided together in one place for the requisite two years, he did so relying on the requirement for cohabitation, a submission he said made an evaluation of whether the relationship was marriage‑like unnecessary. The judge rejected this submission, referring to Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, and proceeded on the basis that the state of cohabitation overlaps with being in a marriage‑like relationship. [17] It seems to me, however, that to be true to the legislation, the starting place for an enquiry into status as a common law spouse should be the first of the three qualifications: did the survivor "live with" the deceased for the requisite period? I say this recognizing that the concept of living with another person must be susceptible to some factual fluidity to take account of the complexities of modern life including employment and education needs, and geography. Even so, the question I would pose here is whether the term "live with" connotes a degree of "withness" or sharing that is independent of the indicia of a marriage‑like relationship and independent of the character of the relationship. [18] For completeness, I will observe

that there are hints in cases that "living with" another person does not refer to the nature of the relationship. In Hodge, Justice Binnie explained that at least in the context of the legislation then before the court, cohabitation is not synonymous with co‑residence. He said at para. 42 that 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". In that discussion, co‑residence and "living with" are interchangeable. [19] Further, in discussing whether parties have been in a marriage‑like relationship, courts have acknowledged that a party may live with another before the relationship transforms into one that is marriage‑like. For example, in Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.), Madam Justice Newbury for the majority observed at para. 53: ... 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. [20] Considering at least these authorities, it seems to me that a different factual enquiry may be engaged by the use of the words "live with" than is engaged by the words "cohabit" and "marriage‑like relationship." However, I do not propose to do more than raise this

issue here. In any case, sharing the same residence is a consideration on the second and third qualifications which I now turn to - "cohabit" and "in a marriage‑like relationship". Those words have been fully considered by the parties and the judge. As did the judge, I consider there is overlap between those words and that "cohabit", for practical purposes, should be treated as encompassed by the words "marriage‑like relationship". [21] How to characterize a relationship between two parties at a given time is not capable of precision: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.); Takacs. In Austin v. Goerz, 2007 BCCA 586, Mr. Justice Frankel explained for the court why there can be no checklist for determining the existence of such a relationship: [58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124: [10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property - in

others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their "spouse" by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some "spouses" do everything together - others do nothing together. Some "spouses" vacation together and some spend their holidays apart. Some "spouses" have children - others do not. It is this variation in the way human beings structure their relationships that make the determination of when a "spousal relationship" exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of "public" declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often

nothing more than wanting to "be together". Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people "ease into" situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist. [Emphasis added in by Frankel J.A.] [22] In Weber v. Leclerc, 2015 BCCA 492, this court addressed the existence of a marriage‑like relationship in the context of the Family Law Act, S.B.C. 2011, c.

25. In passages equally apt to a consideration of the term "marriage‑like" in the definition before us, Mr. Justice Groberman explained: [23] The parties' intentions - particularly the expectation that the relationship will be of lengthy, indeterminate duration - may be of importance in determining whether a relationship is "marriage-like". While the court 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. [24] The question of whether a relationship is "marriage-like" will also typically depend on more than just their intentions. Objective evidence of the parties' lifestyle and interactions will also provide direct guidance on the question of whether the relationship was "marriage-like". [25] Ms. Leclerc argues that approaches like that taken in Molodowich v. Penttinen [(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.)] are nothing more than "checklists", and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like Molodowich are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship. [23] The list of indicators set out in Molodowich, referred to in Weber, was

mentioned with approval by Justices Cory and Iacobucci at para. 59 of M. v. H., [1999] 2 S.C.R. 3, in the context of what was in that case called a conjugal relationship: Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal". [24] The upshot of these cases, as explained in Austin and Weber, is that the characterization of a relationship as marriage‑like is contextual. It involves the subjective intentions of the parties and objective evidence, and the subjective intentions, where there is evidence of such, may be tested by reference to the objective evidence. In turn, that objective

evidence may address a wide assortment of characteristics or indicia for which there is no definitive classification system to determine the ultimate characterization of the relationship. That answer must be given by the judge, understanding the concept and fully considering the evidence. [25] Here the judge demonstrated his understanding of the concepts of cohabitation and marriage‑like relationship. In addition to referring to Austin and Weber, he said: [34] Cohabitation has been defined to mean a mutual intention to continue a relationship which is only ended when one party regards the relationship to be at an end and demonstrates that this particular state of mind is a settled one: Gosbjorn v. Hadley, 2008 BCSC 219 at para. 137, referring to Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357 [Hodge]. ... [37] In my view in the context of the Act, cohabitation requires a mutual intention to be together as more than just roommates. Cohabitation must involve an intention to share responsibilities - although one party can provide more support than another. In this respect there is an overlap between cohabitation and being in a marriage-like relationship. I note that this overlap was eliminated in the successor to the Act, the Wills, Estate and Succession Act, S.B.C. 2009, c. 13, s. 2(1), where the word cohabited was removed from the

definition of spouse. [38] I do not consider that a determination of whether two people lived and cohabited together should be made in isolation from consideration of whether they did so in the context of a marriage-like relationship. As the authorities make clear a holistic approach is required. [26] After his discussion of the correct approach to determining the existence of a marriage‑like relationship, the judge turned to the circumstances presented. It was accepted that Ms. Davidson and Mr. Jones were friends from the mid‑1990s and that, although he resided in Terrace and she in the Lower Mainland, the pair had kept in touch. In spite of the distance between them, their romantic relationship started slowly in late 2010 or early 2011 and blossomed. Before Ms. Davidson and her daughter moved to Terrace in April 2013, Mr. Jones made several visits to Ms. Davidson in her home in North Vancouver and Ms. Davidson made three trips to Mr. Jones' home in Terrace - one in February 2012 after their romantic weekend in Prince Rupert, one for a few days during her daughter's spring break, and the third for a longer period in the summer of 2012. During the third trip to Terrace, Ms. Davidson met friends of Mr. Jones. While the relationship was developing, Ms. Davidson was attending Capilano University and her daughter attended school in North Vancouver. During this period, Ms. Davidson

resolved to move to Terrace on completion of her education at the end of 2013. It is clear that both Mr. Jones and Ms. Davidson intended that she and her daughter would reside with Mr. Jones upon her move to Terrace. As it happened, Ms. Davidson withdrew from Capilano University at the end of 2012, leading to her move to Terrace in April 2013. [27] The evidence before the judge included: evidence of Mr. Jones' references to being in a relationship; evidence of observations made by Mr. Jones' friends of an apparent change in his habits and presentation; evidence of certain monies given by Mr. Jones to Ms. Davidson; evidence of the development of an extensive record of text messages sent by Mr. Jones between October 2011, when they were few, to the early spring of 2012, when they were numerous; and evidence that in October 2013 Mr. Jones changed his work‑related health insurance coverage to family coverage, naming Ms. Davidson and her daughter as dependents, and stating a cohabitation date of September 1, 2012. The court also had before it evidence that Mr. Jones' health was compromised, a feature Ms. Davidson says supports her position that their relationship developed rapidly and was supportive. [28] In respect of financial assistance, the evidence established that Mr. Jones gave financial assistance to Ms. Davidson before March 18, 2012 - $1,500 given in early December 2011

and $500 given in February 2012. This continued after March 18, 2012 - $600 in June 2012, $3,500 in November 2012, $500 in December 2012, and $2,500 in March and April 2013 combined. Ms. Davidson testified that Mr. Jones left cash for her on the several occasions he visited her in North Vancouver, and gave her certain gift cards. [29] Addressing the issue of whether Ms. Davidson and Mr. Jones were in a marriage‑like relationship that satisfied the definition of common law spouse, the judge first addressed the evidence of the intentions of the couple, and then the objective indicia mentioned in Austin and Weber. Among his considerations was the added indicator of their conduct in respect of financial matters, including Ms. Davidson's tax reporting. [30] On the issue of the couple's intentions, the judge observed that the evidence did not allow him to determine easily when Mr. Jones considered that his relationship with Ms. Davidson would be of lengthy indeterminate duration. Here the judge referred to the evidence of the insurance coverage and Mr. Jones' documentary identification in October 2013 of September 1, 2012 as the commencement of cohabitation, and said that was some evidence Mr. Jones did not consider himself in a common law relationship before that date. The judge recognized Ms. Davidson's evidence of her plans for her future with Mr. Jones starting in 2011, but did

not find she had the intention to be in a marriage‑like relationship at a time that met the requirements of the Act. [31] The judge then moved to consideration of the objective evidence before him. He organized his discussion under the headings of shelter, sexual relationship and personal behaviour, services provided by one to the other, social/societal, economic support, children, and other factors. Under other factors, the judge considered Ms. Davidson's statement of her marital status as single on her 2011 and 2012 income tax returns. In the result, the judge found that the relationship before April 30, 2013 was as "boyfriend and girlfriend" as set out in the passages at para. 10 above. [32] I will not review in more detail the many points of evidence referred to by the judge but rather will address the challenges to his findings advanced by Ms. Davidson. [33] Ms. Davidson makes several submissions addressing the judge's consideration of the evidence. She says that the judge misapprehended certain evidence; that the judge erred by ignoring certain evidence; and the judge erred by failing to consider the evidence as a whole, erroneously addressing it in piecemeal fashion contrary to instructions that the common indicia of a marriage‑like relationship should not be treated as a checklist. On the premise that it is open to us to interfere with the judgment, Ms. Davidson urges

us to consider the widening of the societal conception of a marriage‑like relationship and to find she was in such a relationship by at least March 18, 2012. [34] The first question is whether the judge misapprehended evidence that was material to his decision, as Ms. Davidson asserts. This, being a challenge to specific findings of fact, must be considered on the deferential standard: did the judge make a palpable and overriding error as contended? [35] Ms. Davidson says the judge misapprehended evidence in several significant ways, including: · the judge found that Mr. Guenter testified that Mr. Jones referred to her as his girlfriend, when at trial Mr. Guenter testified Mr. Jones had confided he had a long‑term relationship with a woman named Tracey [Davidson] who had a daughter and whom he was helping to support; · the judge found that Mr. Guenter's evidence regarding Mr. Jones' disclosure in early December 2011 that he was financially supporting Ms. Davidson was inconsistent with the documentary evidence, when it was not; · the judge found that Mr. Guenter testified that Mr. Jones only occasionally texted her during the last few months of 2011, with the frequency increasing significantly in February 2012, whereas Mr. Guenter testified that texting increased after October 2011 and the evidence showed it had increased from about 4 texts per day in November 2011 to between 11

and 12 texts a day in March 2012; and · the judge did not consider the temporal component for filed tax returns in finding that Ms. Davidson's description of herself in her 2012 tax return as single, filled in after discussion in 2013 with Mr. Jones, showed they did not consider themselves a common law couple for the year 2012. [36] The first alleged misstatement addresses Ms. Davidson's objection to the judge's description of her and Mr. Jones as boyfriend and girlfriend up until April 2013. She says that description failed to recognize theirs was a long indeterminate relationship. [37] I have reviewed Mr. Guenter's evidence. Ms. Davidson is correct that Mr. Guenter did not refer to her as Mr. Jones' girlfriend. He said, instead: ... - then he said, I have to admit, well, I have this lady friend in North Vancouver and I entered into a long-term relationship with her and I'm supporting her and her daughter while she's going to business college ... he was insisting that this lady finish her schooling before she comes to visit and stay in our home. But he was supporting her I know with his paycheque and I think with some of his savings ... Later in his evidence, Mr. Guenter said that during the summer of 2012, when Ms. Davidson was staying in Terrace, Mr. Jones "introduced her as his live‑in‑lady". [38] While Mr. Guenter did not refer to Ms. Davidson as a girlfriend, I do not see

that description as an obvious misapprehension of evidence. Nor, in my view, is it material to the outcome of the case. This is because I neither read the judge's reasons as purporting to be a verbatim account of the witness's evidence, nor see a material difference between the judge's description of Ms. Davidson and Mr. Guenter's. The word "girlfriend" is not a term of art and is capable of connoting a romantic relationship, whether short term or enduring. I also do not consider the description of Mr. Jones and Ms. Davidson as boyfriend and girlfriend, in context, means anything other than they were in a romantic relationship but were not yet cohabiting or in a marriage‑like relationship. The judge here recognized the romantic interest but said, reasonably, that at the time advocated by Ms. Davidson, their relationship could not be described as marriage‑like. The judge's description of Mr. Guenter's evidence on this, in my view, is not a material error. [39] Nor, in my view, does the judge's reference to the evidence of financial support as being inconsistent with the documentary evidence demonstrate a material error. As can be seen, Mr. Guenter testified Mr. Jones told him he was supporting Ms. Davidson while she went to school. However, the first documented evidence of support for Ms. Davidson is dated early December 2011, after that conversation between Mr. Jones and Mr.

Guenter; in other words, the ongoing support implicit in Mr. Guenter's evidence was not consistent with the documentary evidence. I recognize that the judge accepted that Mr. Jones gave Ms. Davidson undocumented cash gifts when he visited her. The amounts, however, are not in evidence and his trips to the Lower Mainland were relatively few. I can see no error in the judge's description of Mr. Jones' financial support of Ms. Davidson as told to Mr. Guenter, as inconsistent with the documentary record. [40] I reach the same conclusion in respect of the judge's summary of Mr. Jones' texting. It does not, in my view demonstrate a material error by the judge. The central point that Mr. Jones had significantly increased his text messages to Ms. Davidson between October 2011 and the spring of 2012 (including before March 18, 2012) was recognized by the judge. While the volume of messaging supports a conclusion of significant interest between Mr. Jones and Ms. Davidson, that feature does not compel the establishment of a marriage‑like relationship in time for the requirements of the Act. [41] The last alleged misapprehension of evidence concerns the comment of the judge that the conversation in 2013 between Ms. Davidson and Mr. Jones about her self‑description as "single" for purposes of her 2012 tax return did not support an inference the pair considered themselves a common law couple

in 2012. Ms. Davidson explained that her self‑description as single on her income tax return provided her with a child benefit that was otherwise unavailable. She submitted on appeal that, in any event, her return was consistent with her being a common law spouse before 2013 because for tax purposes she was required to have been in a common law relationship for some period before she could claim to be so, and upon so claiming that status would be back dated. There is no support for this explanation in the record. However, accepting this is so for purposes of considering the appeal, I ask whether this explanation would have led to the conclusion Ms. Davidson was a common law spouse for purposes of the Act, i.e., before March 18, 2012. [42] In my view, the answer to that question is no. I respectfully consider that the judge's discussions on the commonly considered indicia do not support that result; whichever of the usual indicia one may look to, it falls far short of strong support for the presence of a marriage‑like relationship at the pertinent time. Instead, the indicia point strongly to a developing romantic and caring relationship with expectations developing through the pertinent period, but not, in my view, to the creation, yet, of a relationship we would recognize as marriage‑like. The reality is that in each of these indicia there is too much space between the parties

to cumulatively produce cohabitation or a marriage‑like relationship before the critical March 2012 date. I do not consider the tax return issue can have any bearing on this appeal. [43] Ms. Davidson also contends that the judge erred by ignoring evidence, in particular Mr. Guenter's evidence that Mr. Jones said he was in a "long‑term relationship" with a woman who had a daughter and was in school, and that he was helping her financially. I have addressed this evidence above in the context of the submission on misapprehension of evidence, addressing the judge's description of Ms. Davidson as Mr. Jones' girlfriend and the financial help given by Mr. Jones to Ms. Davidson. I would not accede to this submission for two reasons. First, I do not consider Mr. Guenter's reference to a long‑term relationship is materially different from the relationship described by the judge in his reasons as a whole, or that the judge's description of the financial support was inconsistent with the evidence. Second, the judge was not required to address each detail of evidence; it is required only that a judge demonstrate sufficient knowledge of the case to support his conclusion: Shannon v. Shannon, 2011 BCCA 397 at para. 8, citing Marois v. Pelech, 2009 BCCA 286. [44] Ms. Davidson's third submission is that the judge erred in applying a checklist analysis, rather than reviewing the evidence in its

totality. I agree that had the judge made this error, it would be one of law that would allow us to interfere if we considered the wrong approach had materially affected the outcome. I do not agree, however, that the judge mechanically approached the question. None of the indicia provided strong support for Ms. Davidson's contention, and their accumulation as a whole simply does not build a picture of a marriage‑like relationship as of March 18, 2012. [45] I read the reasons for judgment as an earnest review by the judge of the circumstances he found were established and, based on the evidence as a whole, a reasonable conclusion that Ms. Davidson had not met her burden of proof. This is not a judgment with which we may interfere, in my view. [46] In the hearing of the appeal, particular attention was given to the circumstances of Ms. Davidson's trips north, the first being to Prince Rupert and Terrace in February 2012. Had the February 2012 trip established a marriage‑like relationship, Ms. Davidson's position as a common law spouse under the Act would have been proved. The judge declined to make that finding, however, and there is no compelling reason to characterize the February 2012 visit as other than a romantic one, after which the parties returned to their respective homes as caring and romantic partners. [47] As to the later visit of Ms. Davidson to Terrace in the summer

of 2012, the fact of that visit could not support a starting time for a marriage‑like relationship sufficient to satisfy the definition of common law spouse in the Act. [48] I can see no error in the judge's conclusion that there was not a demonstrated marriage‑like relationship early enough to meet Ms. Davidson's onus of establishing she was Mr. Jones' common law spouse for purposes of the Act. Conclusion [49] While all has been said on behalf of Ms. Davidson that properly can be said, in my view we cannot interfere with the judge's conclusions that Ms. Davidson did not qualify as the common law spouse of Mr. Jones under the Act. [50] I would dismiss the appeal. "The Honourable Madam Justice Saunders" I agree: "The Honourable Mr. Justice Butler" I agree: "The Honourable Mr. Justice Marchand"