When an elderly person initiates a new relationship it can sometimes plant the seeds of litigation. Perhaps the elderly person needs a caregiver. Or maybe they strike up a friendship with a contemporary for companionship. Perchance, in an effort to reduce expenses, they take on boarders or tenants. But at death, those seeds can bloom into full-fledged litigation. The adult children of the elderly person might be caught off guard when the caregiver/companion or tenant/boarder claims to be a common law spouse. That is exactly what happened in Prelorentzos v. Havaris.1 For those involved in this type of litigation, the case is a worthwhile read on the issue of how the court goes about reviewing and weighing the evidence presented.
John Prelorentzos died without a will.2 He was 71 years old. Many years before his death, he had separated from his wife Marie-Clair. They never divorced. According to the laws of intestacy in Ontario,3 Marie-Clair (as his wife) was entitled to the first $200,000 out of his estate. Since that was all of John’s money, it looked like she was going to get the entire estate. But, jumping to a conclusion too soon in the story is never wise. We have to discuss Helen Havaris’ claim.
So who was Helen? After John and Marie-Clair separated, she was the person who lived in the home owned by John. Apparently, at least at the beginning, she had nowhere else to go and John allowed her to stay in his home as an act of kindness. John’s children and wife believed that Helen was a platonic friend, in part, because John always wanted to reconcile with his wife Marie-Clair. Well, after John died, Helen declined to move out of his home. Helen claimed that she and John were common law spouses.4 If true, this would mean that Helen could qualify as a dependant entitled to apply for support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). To provide some context to the facts of this case, let’s break down the legal argument.5
Under Part V of the SLRA, dependants can seek support if, by the last will and testament or by virtue of the laws of intestacy, the deceased had not provided adequate and proper support.6
So you might ask how that is possible. John never divorced Marie-Clair – can men have more than one wife in Ontario? Doesn’t that constitute bigamy?7 The answer is that, in certain circumstances, the law considers a man to have more than one wife for the purposes of support.8 Second – we just said that under Part II of the SLRA entitlement to an intestacy was limited to a legal spouse. So why, for the purposes of support, do we include a common law spouse? The simple answer – because that is what the legislation says we have to do. As the judge in Prelorentzos v. Havaris said:9
A spouse is included within the definition of dependant. For the purposes of Part V, “spouse” is more broadly defined. The definition found in s. 57 is not restricted to those who are legally married. It also includes unmarried persons who “have cohabited continuously for a period of not less than three years …”10
One of Helen’s arguments was that she and John shared a home for approximately 9½ years. But, lots of people live in the same house and they are not common law spouses. The key question is whether they “cohabitated.”
To be considered cohabitating, a couple must be together in a conjugal relationship. “Conjugal” is not defined by the legislation, so courts look to the case law. The seminal case is Molodowich v. Pentinnen.11
In that case, the court listed some factors that are indicia of cohabitating and therefore being in a common law spousal relationship. Judges do not insist that every factor on the list be checked off, but it provides them with a guideline and framework to work with. The list includes shared shelter, sexual behaviour, social activities, economic support as well as whether people view them as a couple.
So – did John and Helen cohabitate? Marie-Clair and her children led evidence that disputed Helen’s version of the events. They said that John specifically denied any romantic relationship; that they were more like a brother and sister. Marie-Clare and her children testified that John wanted to reconcile with Marie-Clare.
There were neutral non-party witnesses. Some testified that Helen and John never conducted themselves as spouses while other witnesses said the opposite. Welcome to litigation.
In Helen’s narrative, she and John shared a bed and expenses. They travelled together. She also claimed that John was outwardly affectionate towards her. As proof of their relationship she showed that John gave her a car and that she designated him as the beneficiary of her RRSP.
Marie-Clair countered by showing John’s tax returns where he claimed to be “separated.” On income tax returns there is a section where parties indicate if they are living common law with one another. John left the common law box blank. Helen also did not fill out her tax returns as being common law.
The judge was not impressed with Helen’s evidence. Let’s review some excerpts from the decision.
 Despite the length of the trial the evidence on this issue left me asking: is this really all there is?
 Ms. Havaris said the couple kept largely to themselves but had a few close friends. I had anticipated hearing from some of them.
 … Their evidence went no further than establishing that Mr. Prelorentzos and Ms. Havaris spent time together and were companionable.
 Mr. Prelorentzos and Ms. Havaris resided in the Tavistock property for more than nine years. They were in Greece twice. They spent several weeks in Myrtle Beach at various times. Trips to Montreal and Port Huron were mentioned. Yet, I was not shown a single photograph…
 ….did not refer to, let alone rely upon, any birthday or other cards given by Mr. Prelorentzos.
The absence of this type of evidence bothered the court because this is the type of proof normally produced by someone trying to establish a common law relationship. You would think that Helen could not win on her evidence unless it was corroborated by some other material evidence.12
But notwithstanding the holes in Helen’s evidence, the court found that Helen was a common law spouse. Let’s go through his reasoning.13
In these cases the person claiming to be a common law spouse must prove her case on the balance of probabilities. As the judge said, “certainty is not required.” .
There are two parts of the tests to be a “dependant.” First, the applicant has to have a certain relationship with the deceased (i.e., a spouse or a child or a parent or sibling). Second, the deceased must be someone to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. For the first part of the test, the judge felt that the evidence sufficiently corroborated that Helen and John travelled and socialized together. From the fact that she designated John as the beneficiary of her RRSP the court inferred a level of closeness. The judge also felt the second prong of the test was met based on legislative obligation for spouses to support one another.14 So while John and Helen really kept separate economic lives, the Family Law Act obligation for spouses to support one another was sufficient to meet the second prong of the test. Accordingly, the judge said, “ by a very thin margin I am satisfied that Ms. Havaris was his spouse within the meaning of s. 57 of the SLRA at the time of Mr. Prelorentzos’ death.”
What intrigues me about this case is that Helen proved her case without a lot of evidence. Moreover, Helen’s narrative was inconsistent with much of the evidence produced by the other side. Ultimately, the judge made his decision “by a very thin margin.” From the sidelines it is impossible to say what might have pushed the judge over to Marie-Clair’s narrative. But what is well known to lawyers who do trial work is that litigants must lead trump. To win at trial, those opposing the application have to marshal persuasive evidence that corroborates their narrative and casts doubt that the deceased and the application cohabitated continuously for not less than 3 years.
- 2015 ONSC 2844. This case is available on-line at http://bit.ly/Prelorentzos-v-Havaris. For another interesting case commentary on this case, see Joanne Hwang’s blog (of Whaley Estate Litigation) at http://bit.ly/Prelorentzos-v-havaris-case-commentary ↵
- In Ontario when someone dies without a will (“intestate”) the inheritance is divided in accordance with Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26. Pursuant to s. 45(1) of the SLRA, the surviving legal (as opposed to common law) spouse receives a preferential share ($200,000) and the balance (distributive share) is divided between the spouse and the deceased children. For more details on the law of intestacy, I refer the reader to Part II of the SLRA or an article written by Charles Wagner entitled, “Law of Intestacy in Ontario” available on line at http://bit.ly/intestacy-in-Ontario ↵
- See footnote 2. ↵
- Helen had two legal claims. She also claimed, in equity, to have a constructive trust over John’s home. For the purpose of this blog I will only deal with the dependant’s relief claim. ↵
- The facts of the case are more complicated that set out in this blog. There was also an issue relating to a domestic contract under which Marie-Clair gave up all of her rights to John’s home and whether that precluded her from entitlement under Part II of the SLRA. The judge found that the wording of the domestic contract did not include Marie- Clare surrendering her Part II SLRA rights. See paragraphs 15-18 of the decision. ↵
- Section 58(1) of the SLRA. ↵
- In Mahoney v. King, 1998 CarswellOnt 2348, a mistress successfully sued a married man for support because the court found that she was a common law spouse. There are those like the late law professor James G. McLeod who disagreed with this decision. He took exception to the idea that a woman who had an affair with a married man who lived with his wife could be a “spouse.” While Professor McLeod understood the argument of making an unjustly enriched estate compensate a mistress like in Nowell v. Town Estate, he felt that to suggest that a mistress was a spouse for support purposes took away whatever meaning existed in the word “spouse.” – See more at: http://bit.ly/mistresses-right-to-inheritance and at: http://bit.ly/spousal-relationship ↵
- See paragraph 14 in Dagg v. Cameron, 2015 ONSC 2597, where the judge said: “Because Stephen and she were still legally married at the time of his death, Anastasia argues that she, and not Evangeline, was his spouse on the date of his death. There is no reason, however, why a deceased person cannot have two “spouses” to whom he or she has support obligations.” For a fuller treatment of this issue, we refer the reader to the article, “…there is nothing that precludes … being in a spousal relationship with more than one person at a time…” – It is available on line at http://bit.ly/spousal-relationship ↵
- See paragraph 22 of the Prelorentzos case. ↵
See section 57 for the full definition of a spouse under Part V of the SLRA:
“spouse” means a spouse as defined in subsection 1 (1) and in addition includes either of two persons who,
(a) were married to each other by a marriage that was terminated or declared a nullity, or
(b) are not married to each other and have cohabited,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. S.26, s. 57; 1999, c. 6, s. 61 (1, 2); 2005, c. 5, s. 66 (3-8); 2006, c. 19, Sched. C, s. 1 (1). ↵
(1980) 17 R.F.L. (2d) 376 (Ont. Dis. Ct.). These are the seven factor considered by courts to determine whether a conjugal relationship existed:
1. whether the couple reside together and sleep under the same roof;
2. whether the couple share an intimate and sexual relationship and are loyal
to each other;
3. whether the parties share services, such as housework;
4. whether the spouses participate in social/community activities together;
5. the social/community attitudes towards the spouses as a couple;
6. whether the spouses support each other, financially; and
7. whether the spouses have children and are mutually dedicated to their upbringing. ↵
- Evidence Act, R.S.O. 1990, c. E.23 ↵
- In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. R.S.O. 1990, c. E.23, s. 13. ↵
- See s. 30 of the Family Law Act, R.S.O. 1990, F.3. ↵