Case comment: Michel v Cunningham, 2025 SKKB 73

The recent Saskatchewan Court of King’s Bench decision in Michel v Cunningham, 2025 SKKB 73 offers guidance on when a person will be considered a “spouse” for the purpose of under The Intestate Succession Act, 2019, SS 2019, c I-13.2. Michel reminds us that the Court will base its determination on the objective indicia which speak to any spousal relationship, rather than upon the parties’ subjective perspectives of the relationship.

Background:

This proceeding arose out of the estate of a young man named Marshal (“Marshal” or “Deceased”), who died intestate on May 25, 2021 (“Estate”).
Maxine (“Maxine”) claimed that she was Marshal’s spouse at the time of his death. Maxine claimed that she was in a spousal relationship with him from June 1, 2018 until the time of his passing on May 25, 2021.
The Applicant, Kayla (“Kayla”), was acting in her capacity as litigation guardian for Milena, the Deceased’s biological child. Kayla argued that Maxine and Marshal were only in a spousal relationship from October 1, 2018, to March 2020. If so, this period was less than two years, and would not meet the two-year cohabitation requirement under The Intestate Succession Act, 2019, SS 2019, c I-13.2.
Milena was born July 13, 2018, and was Marshal’s only biological child. Kayla and Marshal were not in a close relationship at any point during Marshal’s life. Milena had never seen Marshal. However, if Maxine was not found to be a spouse, Milena would inherit the entire Estate under Saskatchewan intestacy laws.
Maxine claimed that she was the person entitled to administer Marshal’s estate (“Estate”) under the ISA. After Marshal died, Maxine had in fact applied for and received letters of administration for the Estate on December 30, 2022. Maxine had not given notice of this application for letters of administration to Kayla. Kayla only received notice of this grant of administration in February of 2023 from the Public Guardian and Trustee.
Thereafter, Kayla caused a petition to be issued in October of 2023 on Milena’s behalf against the Estate seeking relief under The Dependants’ Relief Act, 1996, SS 1996, c D-25.01.
The Estate was largely comprised of shares in Marshal’s company. By the date of the Court decision in June 2025, it appeared that the value of the Estate had diminished significantly from initial valuations. However, as of December 30, 2022 the Estate assets had been estimated at $1,812,134.22.

Procedural history:

Kayla had initiated an originating application against Maxine in her personal capacity and in her capacity as administrator for Marshal’s estate on June 5, 2024. Kayla sought the various relief, including the below:

A determination with respect to whether Maxine was Marshal’s spouse;
An order for an accounting from Maxine for the Estate;
An order that Maxine’s grant of letters of administration should be revoked;
An order that Kayla be appointed as the administrator of the Estate.

The parties filed voluminous affidavit evidence and took the opportunity to cross-examine these witnesses.
The Court found that such steps had given it enough evidentiary material to weigh all the evidence, evaluate the credibility of all the witnesses, and resolve the conflicting testimony in this matter fairly. As such, the Court held that a trial was not necessary.

Evidence presented:

In her affidavit material, Maxine stated that she was in a serious and long-term romantic relationship with Marshal from March of 2018 until his passing on May 25, 2021.
Maxine said that Marshal and she had started living together in June of 2018. Maxine said they were committed and saw a future together where they would be married and have children and at the same time keep their professional lives intact.
Maxine attested that they were both extremely busy professionals. They were entrepreneurs, startup founders and Chief Executive Officers of their respective companies, and were passionate about their work. While they were not financially involved in each others’ corporations, they were each others’ sounding boards and support system.
In March 2020, Maxine received an offer to speak at a conference in Melbourne, Australia and went there alone as Marshal could not accompany her. At that time, COVID hit, and Maxine was stranded in Australia until she caught the last flight to Vancouver around March 27, 2020. While Maxine was in Australia, Marshal returned to Regina to take care of his business. When Maxine returned to Vancouver, Maxine states they were forced to live separately for extraneous reasons beyond their control. However, Maxine said that they were on the phone with each other and texted each other several times during the day on a day-to-day basis.
Maxine only saw Marshal once between March 2020 to December 26, 2020, although she attested that they were in extremely frequent virtual contact.
Maxine started living with her mother some time from March 2020 onwards. The last time Marshal attended to the Vancouver apartment was in March of 2020.
Maxine stated that she and Marshal had not broken up in March of 2020, as they had simply taken a “breather” in their relationship, in order to re-establish boundaries.
There was also evidence presented which suggested that Marshal may not have himself believed that he was any longer in a spousal relationship with Maxine. A woman named Kara presented evidence. She stated that she met Marshal in Regina in March of 2020 through mutual friends. Marshal was introduced to her as being “newly single”. Kara said that Marshal had confirmed to her early on in their relationship that he had broken up with Maxine.
During this time, Kara said she would often visit Marshal’s residence in a condo in the east end of Regina. Kara said that she was in a serious relationship with Marshal from March of 2020 to the end of November of 2020. Kara provided photographs between April 12, 2020, and July 11, 2020, which document some of the time they spent together in Regina, where they both lived during the relationship period.
There was also evidence that after the relationship with Kara, Marshal had then potentially entered into a relationship with a woman named Jasmin.

Issue:

This case comment focuses on the below issues:

Issue 1: Whether Maxine was a “spouse” of the Deceased as defined by the ISA;
Issue 2: What orders should be made regarding Marshal’s estate.

**Decision in Michel v Cunningham:**

Issue 1: Whether Maxine was a “spouse” of the Deceased as defined by the ISA.

What criteria can be considered when determining if a spousal relationship exists?

In determining if Maxine was a “spouse” of the Deceased, the Court turned to the definition of “spouse” under the ISA as follows:

“spouse” means:

1. the legally married spouse of the intestate; or
2. an individual who:

1. 1. cohabited with the intestate as spouses continuously for at least 2 years; and
  2. at the time of the intestate’s death was continuing to cohabit with the intestate or had ceased to cohabit with the intestate within the 24 months before the intestate’s death. (“conjoint”)

[emphasis added]

Determining if two people are common law spouses is a fact-specific inquiry. The legislation provides little guidance on when a common law spousal relationship comes into existence or when it comes to an end. This is unlike a legal marriage, which is declared as of a given commencement date and possesses legal formalities. In contrast, the finding of a common law relationship requires a close examination of all of the circumstances.

The Court declared that the inquiry should not be on the parties’ subjective belief as to when they became “spouses”, but upon the objective facts that provide the indicia of a spousal relationship.

The Court surveyed relevant prior decision which had outlined relevant considerations for determining who are “spouses”. The Court held that it should focus its analysis on the below factors:

[172] At the end of the day, my analysis of what is meant by “spouse” must assess disparate factors such as, but not limited to, shelter, sexual and intimate behaviour, the division of labour within the household, the societal and social perception of the couple within the community and their families, their financial arrangements, their planned future, the motivation for the relationship and provisions in the event of illness or death in an objective, flexible and holistic fashion.

1. Who bears the onus of proving a spousal relationship?

The Court also commented on who bore the onus of proof. The Court determined that Maxine bore the onus of proving that she was a spouse. This was so even though it had been Kayla who had brought the application seeking a determination of whether Maxine was a spouse.

The Court suggested that Maxine bore the onus because there were limited objective indicia which suggested that Maxine was a spouse on first glance. Thus, if Maxine wished to prove that she was a spouse the onus was on her:

[183] Upon reviewing this matter, I find it is clear that Maxine must bear the onus of proving she is a spouse despite not being the applicant in this litigation.

[184] I make this finding because it is not “self-evident” that Maxine is a spouse. She was not legally married to Marshal. She was not named as a beneficiary in any insurance policy. She was not named in any fashion in Marshal’s obituary. She was not physically living or sharing any accommodation with Marshal at the time of his death and had not been doing so for some time. While there may be legitimate explanations for these facts, Kayla is in no position to address these concerns, despite being the applicant. Like the respondent in the decision of Behr v Howe, 2022 SKQB 97 at para 77, Maxine is better situated to provide evidence regarding the nature of her relationship with Marshal.

The Court also held that it would only be fair to place the onus on Maxine, as she was the person who had the best access to any evidence relating to the relationship Maxine and Marshal had shared:

[186] In sum, equity demands that in the situation in the case at bar, the individual who has the best access to the “spousal” evidence must be the individual who bears the burden of proving that they were indeed spouses as no one else would be in a better position to do so. Kayla knew little about Marshal’s life. Marshal had no obligation to share any of his personal information with Kayla. Given Marshal’s death, Maxine would appear to hold the bulk of the information about her relationship with Marshal.

When did Maxine and the Deceased begin to, and cease to, cohabit?

The Court noted that the ISA required that a spousal relationship involve a period of continuous cohabitation for a period of two years. The Court therefore determined that it must ascertain the beginning and end point, if any, for the relationship between Maxine and Marshal.

The Court did not find that the date of when Maxine and Marshal had first “moved in” together to be commencement date of a spousal relationship. The Court held that the act of moving in together was no longer to be considered an “an automatic leap into a “spousal” relationship of permanence” in this modern age:

[193] Given that this relationship had commenced in March 2018 and was still relatively new in June of 2018, I do not find that moving in together in these circumstances would take the relationship between the parties to the “spousal” level. Marshal was still often commuting to Regina as that was where his business was located and making other trips to other locations for business purposes. Of note, Marshal never confided in Maxine that he had a child until July of 2018. Even if “all his stuff was there” as noted by Sylvia in reference to Marshal’s belongings at Maxine’s apartment, that fact is not conclusive. Moving in with someone in 2018 does not have the same force as it might have had in 1970 or even 1980 given the different social perceptions regarding unmarried people living together. It is a big step, but it is not an automatic leap into a “spousal” relationship of permanence.

Rather, the Court held that the commencement date of the relationship was September 5, 2018. This was the date when Maxine and Marshal signed a lease for an apartment together. Such date showed that they were then committed to finding a place to live together. Therefore, the Court held that Maxine and Marshal commenced a spousal relationship as defined in the ISA on September 5, 2018.

The Court then turned to consider when any relationship had ended. The Court noted that if it were to find that the spousal relationship between Marshal and Maxine continued uninterrupted from September 5, 2018, until at least September 5, 2020, then Maxine would have established her onus to be defined as a spouse.

If not, then Milena (as the child of Marshal) would be the sole beneficiary of Marshal’s estate and Maxine would have no part to play in the Estate, nor any rights in it.

Maxine argued that the Court should take into account the 2020 COVID restrictions which hindered the ability of Marshal and Maxine to be physically together continuously. Maxine also argued that cohabitation in the modern context does not necessarily mean being under the same roof and exclusive to each other.

Maxine submitted that her relationship with Marshal had continued despite the gaps that they took in their relationship, and despite Marshal’s relationship with Kara. Maxine argued that despite Marshal’s infidelity, new relationship and the physical distance between Marshal and Maxine, there was no evidence of any intention by Marshal that the separation between Maxine and Marshal be permanent.

On the other hand, Kayla argued that Maxine was unable to prove that Maxine had cohabitated with Marshal for a period of two years. Kayla also noted that during the post-COVID period of time, Maxine and Marshal moved out of their shared apartment and Marshal started a new relationship with Kara. In addition, even after his relationship with Kara ended, Marshal chose to begin an entirely new relationship with a woman named Jasmin in Regina.

The Court agreed with Kayla. The Court held that the spousal relationship with Maxine had ended as of May 2020. Thus, Maxine had not been a spouse for two full years.

The Court determined that to end cohabitation, there must be a physical withdrawal between the parties from the cohabitation with an intention to end the relationship. The Court held that it was entitled to consider the below factors:

The overall length of the relationship;
The frequency and duration of the temporary separations;
The purpose of the separations;
The conduct of the parties towards each other during and after these separations (should they exist).

In this situation, the Court held that the clear end point of the spousal relationship between Marshal and Maxine was May of 2020.

The Court noted that while Maxine may have truly believed she was still in a continued relationship with Marshal, Marshal did not appear to hold such a belief after May 2020:

[232] …While Maxine may have subjectively believed in this continued commitment to their spousal relationship, on an objective basis as a result of Marshal’s actions, I find that Marshal did not. Further, I also find that Maxine acted in ways that do not objectively support a continued spousal relationship with Marshal.

…

[235] In analyzing Marshal and Maxine’s circumstances during this period, I acknowledge the outsize impact of COVID on their relationship. The fact that both parties eventually left their Vancouver apartment was due in no small part to COVID and the pandemic’s effect on their ability to travel and manage their businesses. Had COVID not occurred, their relationship may have survived. However, while I find that COVID precipitated the physical distance between Maxine and Marshal and its aftermath made it difficult for them to be together, it was largely Marshal’s choices after their physical separation to begin his relationship with Kara while remaining in Regina that led to the ending of the spousal aspect of his relationship with Maxine.

The Court also found that Maxine’s decision to move out of the apartment was a signal of a permanent move:

[236] I also find that Maxine’s decision to leave their previously shared apartment in Vancouver to be also significant as it shows that in times of duress, she chose to seek the comfort and support of her mother rather than Marshal. No doubt this was driven by the fact that her business, as well as her family is located, in the area. This is understandable. However, there were no COVID restrictions which would have absolutely prevented her from moving to Regina or to make at least one attempt to do so in the time after March 2020. The fact that Maxine still resides with her mother shows that her move at the time was a move of permanence.

….

[244] I find that the objective evidence is clear as a result of Maxine moving in with her mother that she viewed her physical separation from Marshal as an event that was unlikely to ever resolve. …this factor led to a break in their previously continuous spousal relationship. The fact that she left the apartment is evidence of a settled state of mind that the break in relationship was a matter of permanence.

The Court also relied on the fact of Marshal’s burgeoning relationship with Kara. The Court found that Marshal had acted in such a way as to make clear that he was in a new public relationship with Kara:

[257] In these circumstances, I find that all these circumstances demonstrate that, at the time he was in a relationship with Kara by May of 2020, Marshal had a settled state of mind that his spousal relationship with Maxine was over.

The Court held that Maxine and Marshal were no longer in a spousal relationship as of May of 2020. This was despite the fact that Marshal still continued to have personal and intimate communications with Maxine throughout this time, and that Marshal and Maxine had never mutually communicated an intention to breakup.

Issue 2: What orders should be made relating to Marshal’s estate:

The Court held that Maxine had not met her onus of proving that she was in a continuous spousal relationship with Marshal as defined by the ISA. Moreover, even if the onus had not been on Maxine, the Court still held that in light of all the evidence it could not find in any event that Maxine was in a spousal relationship with Marshal for at least two years.

Given that Maxine was not to be considered a spouse, Milena (as the child of Marshal) would be presumptively entitled to the entirety of the Estate.

As a result, the Court revoked Maxine’s letters of administration and appointed Kayla as the administrator of the estate on behalf of Marshal’s child, Milena:

[264] Therefore, pursuant to 17(1)of the AEA, I appoint Kayla as the administrator of the estate on behalf of Milena, and pursuant to s.17(3) of the AEA, I will dispense with the requirement to obtain a bond. She will be required to secure and obtain new letters of administration in her own name pursuant to this order.

Under law, an administrator is to provide an accounting within two years of being appointed as administrator. As such two years had passed since Maxine had been appointed, Maxine was ordered to provide Kayla with a full accounting of Maxine management of the Estate within 30 days.

The issue of costs was left to be determined in future, after future submissions on that issue.

Conclusion:

Michel offers various reminders for estate litigation counsel:

First, the inquiry into whether someone was a spouse is a highly fact dependent inquiry. Extensive effort and cost is required for counsel to thoroughly investigate all facts, and interview all potential witnesses who observed the deceased and observed facts relevant to their relationship status;
Second, the subjective beliefs of the potential surviving potential spouse (in relation to the concepts of love, the nature of the relationship etc.) will not be the ultimate determining factor. Rather, the Court will focus upon objective indicia of a spousal relationship. These include but are not limited to, shelter, sexual and intimate behaviour, the division of labour within the household, the societal and social perception of the couple, their financial arrangements, etc.;
Third, Michel suggests that the Court will place the onus of proof upon the person on who claims to be the spouse. This is an important fact for potential spouses to bear in mind. The allocation of the onus dictates the work in the proceedings. The person who bears the onus will bear more leg work and cost in terms of gathering records and evidence. It will thus lie on the potential spouse to assemble and present evidence that meets the relevant standard of the balance of probabilities. Failure to do so may result in the potential spouse losing the case, no matter what evidence the other party presents.