The rights of unmarried cohabitants in Canada

The rights of unmarried cohabitants in Canada Abstract The number of unmarried, cohabitating couples in Canada has increased steadily over the past 50 years. The rights and remedies that flow from these relationships vary widely across Canada’s provinces and territories.1 The authors survey the laws of four provinces (British Columbia, Alberta, Ontario, and Quebec) as illustrative in three distinct areas: property rights, spousal support, and rights on a partner’s intestate death. Tax issues arising in these three areas are also considered. Introduction The portrait of family organization and living arrangements in Canada has been changing steadily over the past 50 years.2 In 1961, married couples accounted for 91.6 per cent of Canadian families. By 2011, that share dipped to 67 per cent. What constitutes a family in Canada has also transformed dramatically. In 1993 unmarried cohabitants were recognized for the first time as spouses, termed common law partners, for federal income tax purposes.3 In 2005 same-sex partners could be legally married in Canada and the legal and property rights of unmarried cohabitating same-sex couples are now recognized by many of the provinces.4 Notwithstanding the increase in the number of unmarried cohabitants in Canada, the rights of cohabitating couples remain far from clear. This is the result of both Canada’s constitutional framework and its civil and common law traditions. Canada is a country made up of 10 provinces and three territories. Central to the organization of government in Canada is the principle of federalism.5 Under this principle, Canada is divided into two constitutionally autonomous levels of government—federal and provincial—each with distinct powers. While marriage and divorce are within the exclusive legislative authority of the federal government, each provincial government has the authority to legislate on property and civil rights in their province.6 As a result, the rights of unmarried cohabitating couples, if any, must be determined based on the law of the particular province. These rights differ from the rights of married couples in a number of ways, though there are some similarities.7 For example, most provinces do not have legislation to address the division of assets on the breakdown of a relationship between unmarried cohabitants. However, all provinces except Quebec have legislation that addresses the rights and obligations of unmarried cohabitants related to support, and some provinces address rights on death. Where no provincial statute applies, unmarried cohabitants must rely on common law principles, including equitable principles, in the common law provinces and on civil law principles in the province of Quebec. For the purpose of this article, the rights of an unmarried cohabitant in four provinces (British Columbia, Alberta, Ontario, and Quebec) have been selected as illustrative of the full variety of statutory provisions in existence in Canada. Appendix A contains a summary of these rights in all provinces and territories across Canada. The discussion begins with a consideration of how federal and provincial legislation applies to unmarried cohabitants. An overview of the equitable remedies available in the common law provinces with respect to property division on separation follows. The statutory provisions of the three common law provinces (British Columbia, Alberta, and Ontario) are next considered as they relate to the rights of unmarried cohabitants. Finally, the article discusses the rights of cohabitants under the civil law regime in the province of Quebec. Who is an unmarried cohabitant? Who is an unmarried cohabitant and when such an individual is accorded legal entitlements or property rights varies widely across Canada. For federal tax purposes, the Income Tax Act defines a common law partner as a person who cohabits in a conjugal relationship with the taxpayer either for a 12-month period, or who is the parent of a child of the taxpayer.8 With respect to property rights and spousal support entitlements, the most important factor is whether an individual meets the definition of ‘spouse’ under applicable provincial laws. In addition to the specific rights afforded, the criteria for who is considered a spouse vary widely across the provinces but generally require cohabitation for a minimum of at least two years unless an agreement or declaration is entered into by the unmarried cohabitants.9 Equitable remedies for unmarried cohabitants For the most part, provincial legislation does not address the division of property on the breakdown of the relationship between unmarried cohabitants. In these circumstances the only property that an unmarried cohabitating spouse is presumptively entitled to, without a need to take legal action, is property owned by that spouse, or jointly owned with his or her spouse. If one spouse claims an entitlement to property owned solely in the name of the other, the non-owning spouse must rely on equitable remedies in the common law provinces where no statutory relief is available. This requires that the spouse seeking entitlement to an asset prove an entitlement. The equitable claim made by the non-owning spouse is usually based on the existence of a resulting trust,10 or unjust enrichment, for which the remedy is a constructive trust.11 The more common claim is unjust enrichment. To succeed in a claim for unjust enrichment, the claimant spouse must show that their spouse has been unjustly enriched, generally as a result of the claimant’s labour or other services. Historically, the monetary value of a successful unjust enrichment claim was measured on a ‘quantum meruit’ or fee for service basis. In 2011, the Supreme Court of Canada introduced a significant change to the determination of the monetary award for unmarried cohabitants who separate, if the spouses were engaged in a ‘joint family venture’.12 Specifically, the Court found that if the unjust enrichment claim was based on an unjust retention of a disproportionate share of assets accumulated in a joint family venture to which both partners contributed, the monetary remedy for unjust enrichment was to be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.13 This could result in a significantly higher award for the claimant spouse than would result from a quantum meruit claim. In addition to these equitable remedies for the division of property, unmarried cohabitants may also look to other provincial statutes for support obligations and rights on death. There are numerous access to justice concerns beyond the scope of this article for spouses who may have valid entitlements, but are forced to go through the process of seeking equitable remedies in court. 14 British Columbia British Columbia is the friendliest province to unmarried cohabitating couples as the result of an amendment to the definition of ‘spouse’ in the British Columbia Family Law Act.15 Since 2013, couples living together in a marriage-like relationship for at least two years, or for less time if they have a child together, have the same rights as their married counterparts.16 Division of property In general, upon the breakdown of the relationship, unmarried cohabitants who meet the definition of ‘spouse’ are entitled to half of the family property and family debt.17 All property owned by either or both spouses at the date of separation is considered to be family property (such as real property or bank accounts) unless it is excluded property (such as inheritances, certain gifts or court awards, or property bought with property brought into the relationship). As a general rule, excluded property is presumed to remain the property of the spouse who owns it, but the increase in value of the excluded property becomes family property and is shared.18 All debt that is incurred by either or both spouses from the date the spouses began living together to the date of separation is family debt. Responsibility for family debt is presumed to be shared equally between spouses, regardless of their use of or contribution to that debt.19 Support Unmarried spouses who separate are entitled to the same benefits and obligations with respect to spousal support as their married counterparts.20 Death If an unmarried spouse dies intestate in British Columbia, his or her spouse is entitled to a share of the estate, as are the couple’s children. The share will vary depending on whether the deceased had children from another relationship.21 Income tax An unmarried cohabitant that meets the definition of spouse in British Columbia will also meet the definition of spouse or common law partner for income tax purposes and will, therefore, be able to rely on federal tax provisions with respect to the deductibility of support payments and in respect of the tax-free transfers of property between the unmarried cohabitants both inter vivos and on death. Alberta The law governing unmarried cohabitants generally in Alberta is the Adult Interdependent Relationships Act.22 Property rights and spousal support of Adult Interdependent Partners (AIPs) are, however, regulated under Alberta’s Family Law Act.23 Unlike British Columbia’s legislation, if two unmarried individuals cohabit for an extended period of time, Alberta’s legislation does not confer upon AIPs all of the rights of married spouses. To be considered an AIP, couples must either live together in a ‘relationship of interdependence’ for at least three consecutive years, or live together in a relationship of interdependence ‘of some permanence’ for less than three years if there is a child of the relationship (either by birth or adoption). Alternatively, couples may enter into a written AIP Agreement together and forego the three-year requirement.24 The Act defines a ‘relationship of interdependence’ as a relationship outside marriage in which two people share one another’s lives, are emotionally committed to one another, and function as an economic and domestic unit.25 The relationship does not have to be conjugal to meet these criteria. The Act lists factors to be considered to determine if the couple functions as an economic and domestic unit. These include:26 whether or not the persons have a conjugal relationship; the degree of exclusivity of the relationship; the conduct and habits of the persons in respect of household activities and living arrangements; the degree to which the persons hold themselves out to others as an economic and domestic unit; the degree to which the persons formalize their legal obligations, intentions, and responsibilities towards one another; the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being; the degree of financial dependence or interdependence and any arrangements for financial support between the persons; the care and support of children; and the ownership, use, and acquisition of property. Persons who are cohabitating but who do not want to be considered AIPs under the Alberta Act may enter into an agreement to clarify their intentions. However, if the parties are in fact in a ‘relationship of interdependence’ or have children together, that agreement may be ineffective to prevent claims against the other. Division of property There is no statute in Alberta that deals with division of property when an adult’s interdependent partnership ends.27 However, the Alberta Family Law Act does confer limited property rights upon AIPs. For example, a court may grant exclusive possession of the matrimonial home, make an order with respect to property within the home, and grant exclusive use of household goods.28 Support An AIP may make a court application for a support order where the relationship has broken down.29 While the AIRA contains no provisions related to support, Alberta’s Family Law Act includes AIPS in Division 2, Support of Spouse or Adult Interdependent Partner.30 Death On the death of an AIP, the surviving AIP can apply for relief from an intestacy or the terms of a Will where inadequate provision has been made for them.31 If no Will exists, priority is given first to the ‘surviving spouse or adult interdependent partner’ applying for a grant of probate or administration.32 The Wills and Succession Act33 also gives a limited right for a surviving adult interdependent partner to stay in the deceased person’s home for 90 days.34 When an AIP dies intestate, that AIP’s entire estate goes to his or her partner if there are no surviving descendants. If an AIP dies intestate and leaves his or her AIP and one or more descendants, and the descendants are also the descendants of the surviving AIP, then the entire estate goes to the surviving AIP. If an AIP dies intestate and leaves descendants who are not also the descendants of the AIP, then the AIP will receive the greater of either 50 per cent of the estate or the amount set by law under the regulations to the Wills and Succession Act.35 Entering into an adult interdependent relationship does not revoke or cancel all or any part of a Will.36 Where a Will exists, rules of intestate succession may be varied. However, a surviving partner may still challenge his or her AIP’s Will through dependant’s relief legislation, if adequate support was not provided. Income tax An AIP may not be considered a spouse or common law partner for income tax purposes. For example, because of the option to enter into a written AIP Agreement at the outset of a relationship, it is possible that an AIP, for a time, may not meet the definition of a common law partner in the Income Tax Act, which requires continuous cohabitation for 12months if there are no children. An AIP who is a related person will also, no doubt, have difficulty meeting the federal tax requirement that the couple live in a conjugal relationship. As a result an AIP may not be able to claim that their partner is a common law partner for tax purposes or rely, on the tax reliefs, including the transfer of property on a tax deferred basis, available for spouses or common law partners both inter vivos and on death. Ontario To be afforded the rights of a spouse in Ontario, the couple must be married.37 There is an exception to this general rule with respect to support obligations and when seeking relief as a dependent on a partner’s death. For those purposes, the definition of ‘spouse’ additionally includes either of two persons who are not married to each other and who have cohabited continuously for a period of not less than three years, or who are in a relationship of some permanence, if they are the parents of a child.38 Division of property There are no statutory property rights conferred upon unmarried cohabitants in Ontario, regardless of how long the couple cohabits.39 The rights, if any, of an unmarried cohabitant are based on the aforementioned equitable claims and in particular the claim of unjust enrichment. Support Once an unmarried cohabitant is considered to be a spouse for spousal support purposes, the spouses have same rights and obligations regarding spousal support as if they were married.40 The entitlement and amount of spousal support will depend on factors including the spouses’ age, income, assets, health, and other enumerated criteria in the Ontario Family Law Act.41 Death Very few property rights exist for unmarried cohabitants under Ontario’s intestate succession legislation. This is because the definition of ‘spouse’ used in Ontario’s Succession Law Reform Act42 is limited to married spouses.43 If an unmarried cohabitant dies intestate, no provisions entitle his or her partner to a share of the estate, unlike in Alberta and British Columbia. Unless property is owned jointly, Ontario’s intestacy laws give the deceased’s property to surviving children and other relatives.44 However, this lack of entitlement can be mitigated in Ontario by the seeking of dependant’s relief under Ontario’s Succession Law Reform Act.45 For purposes of relief under Part V of the Succession Law Reform Act, a broader definition of spouse is used and includes either of two persons who are not married to each other but have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence, if they are the parents of a child.46 Income tax An unmarried cohabitant that meets the definition of spouse in Ontario will also meet the definition of spouse or common law partner for income tax purposes and will, therefore, be able to rely on federal tax provisions with respect to the deductibility of support payments and in respect of the tax-free transfers of property between the unmarried cohabitants both inter vivos and on death. Quebec The province of Quebec has, until now, been left out of comparative discussion. This is largely due to the great disparity between its laws governing spouses in this province and the laws of the rest of Canada. Quebec offers the fewest rights to unmarried cohabitants in all of Canada.47 This is interesting when one considers that the province has the highest proportion of unmarried cohabitants in Canada.48 It should be noted that in addition to a traditional marriage, couples in Quebec have the option of entering into a civil union whereby they publicly commit by contract, in front of a priest or pastor or notary, to a life together.49 The union grants rights and imposes obligations on both partners as a marriage would, but such unions still differ from matrimony in the sense that a civil union may, under certain conditions, be dissolved by a simple joint declaration before a notary. Unmarried cohabitants in Quebec are called de facto spouses.50 Citing a respect for the freedom of choice of couples living in a de facto union, lawmakers in the province have deliberately chosen not to extend to these couples the same rights and responsibilities that married or civil union couples have under the Civil Code of Quebec. This is true regardless of the number of years of cohabitation. It is often urged that de facto spouses in Quebec enter into a cohabitation contract to ease property division in the event of relationship breakdown. Division of Property With respect to the family residence, persons living in a de facto union in Quebec are not entitled to the family residence protection the Civil Code of Québec provides for individuals who are married or in a civil union.51 Support When a relationship between unmarried cohabitants in Quebec breaks down, there are no spousal support obligations or entitlements as there are in the previous three jurisdictions discussed.52 Death Unmarried cohabitants are not legal heirs of each other under Quebec’s Civil Code.53 If a person living in a de facto union dies without a will, the estate is divided among the legal heirs of the deceased according to the succession rules of the Civil Code of Québec—rules that progress through family members but notably exclude unmarried cohabitants (de facto spouses). Income tax An unmarried cohabitant that meets the definition of spouse in Quebec will also meet the definition of spouse or common law partner for income tax purposes and will, therefore, be able to rely on federal tax provisions with respect to the deductibility of support payments and in respect of the tax-free transfers of property between the unmarried cohabitants both inter vivos and on death. Conclusions The rights of unmarried cohabitants across Canada are governed by a patchwork of statutory provisions and non-statutory principles. For individuals who choose not to marry, it would be wise not to ignore the rights accorded to unmarried cohabitants or the lack of clarity about these entitlements in many of the provinces. The largest statutory gap appears to be with respect to the division of property. In two of the three common law provinces under review, where an unmarried spouse claims an interest in property in which he or she is not a joint owner or on title, that spouse is required to rely on principles of equity to resolve the dispute. In these situations, the property at issue is often substantial—for example, a couple’s home. It follows that joint home ownership provides the most certainty for unmarried cohabitants. The same holds true for the purchase of other immovable property. Considerable uncertainly also remains around the rights of couples who cohabit for an extended period of time but end their relationship before the crystallization of their rights as common law couples, under applicable provincial legislation.54 If unmarried cohabitants have a child together, these timing requirements are further complicated. In summary, unmarried cohabitants seeking to exercise their rights on the breakdown of their relationship or on the death of one of the cohabitants are required to navigate a complex and uncertain legal path. A well-drafted cohabitation agreement that sets out the rights of the parties may ease some of this uncertainty. Catherine Brown is a professor at the Faculty of Law, University of Calgary and the author of Taxation and Estate Planning as well as numerous publications. She is a member of the Ontario and Alberta Bars, a past Governor of the Canadian Tax Foundation and a current member of STEP Canada. Kyle Gardiner is a 2017 Juris Doctor graduate from the University of Calgary Faculty of Law. During his law degree, Kyle was a recipient of the Shea Nerland Calnan Research Fellowship in tax law, the Dean Michael Wylie Social Responsibility Award, and the Hon. Cecilia Johnstone Equality Award. He is currently articling with in-house legal counsel at the University of Calgary. Appendix A: Property rights of unmarried cohabitants in Canadian provinces and territories   Division of property  Spousal support  Intestate death  British Columbia (two years of cohabitation)  Rules that apply to an unmarried spouse’s claim for the division of property and debt under British Columbia’s Family Law Act are exactly the same as those that apply to married spouses. Partners are entitled to half of shared debts and assets. May also seek orders about the division of property and debt.  - Eligible to seek a spousal support order.  - Unmarried spouse is entitled to a share of the estate under the Wills, Estates and Succession Act, as are the couple’s children. A spouse is entitled to receive the first $300,000 from the estate. If there are children from a prior relationship, the spouse is entitled to receive $150,000.  Alberta  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Under the Wills and Succession Act, the entire estate goes to the deceased’s AIP if there are no surviving descendants.  (three years of cohabitation; AIP)  - AIP may seek a grant of exclusive possession of the matrimonial home, an order with respect to property within the home, and with respect to exclusive use of household goods under Alberta’s Family Law Act.  - If AIP dies with descendants who are not also the descendants of the AIP, then the AIP will receive the greater of either 50% of the estate or the amount set by law under the regulations to the Wills and Succession Act.        - AIP may seek support as dependent.  Saskatchewan  - The same rules relating to the division of property at the end of a relationship apply to married and unmarried partners in Saskatchewan under the Family Property Act. (50/50 presumptive split)  - Eligible to seek a spousal support order.  - The Intestate Succession Act, and the Dependants’ Relief Act both treat married and common law couples who have cohabited for not less than two years the same.  (two years of cohabitation)  Manitoba  - Each partner is entitled to half the value of the property acquired by the couple during the time they lived together, including pensions: see The Common-law Partners’ Property and Related Amendments Act.  - Eligible to seek a spousal support order.  - If a common law partner dies intestate with no lineal descendants, the entire estate goes to the surviving common law partner: see The Intestate Succession Act.  (three years of cohabitation)  Ontario  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - No entitlement to share of estate (unless property owned jointly).  (three years of cohabitation)  - Unmarried spouse may seek only dependant’s relief under Part V of Succession Law Reform Act.        - 19 factors to consider under subsection 62(1).  Quebec  - No additional rights.  - Not eligible to seek a spousal support order. Article 585 only applies to spouses married or in a civil union.  - De facto spouses are not legal heirs under the law, Article 653. If a person living in a de facto union dies without a will, the estate is divided among the legal heirs of the deceased (children, father and mother, brothers and sisters, nieces and nephews).  (no amount of cohabitation yields rights to de facto spouses)  - Not entitled to the family residence protection the Civil Code of Quebec provides for individuals who are married or in a civil union.  Nova Scotia  - If couple files, then Matrimonial Property Act applies.  - Eligible to seek a spousal support order if cohabitated for two years, regardless of whether or not registered domestic partnership declaration exists.  - Unmarried spouses are having no presumptive rights under the Probate Act unless the couple has signed a ‘domestic partnership declaration’.  (must file ‘registered domestic partnership declaration’.)      - An unmarried spouse may bring a claim for property in court.  New Brunswick  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Devolution of Estates Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Newfoundland and Labrador  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Intestate Succession Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Prince Edward Island  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Probate Act.  (three years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Northwest Territories  Property Division provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - The Wills Act defines ‘spouse’ as having the same meaning as in the Family Law Act. Partner may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children.  (two years of cohabitation)  Yukon  - Equitable principles of common law apply.  - Eligible to seek a spousal support order if couple lived together in a relationship of ‘some permanence’.  - The Estate Administration Act makes provisions for common law spouses.  (12 months of cohabitation (for Estate Administration Act))      - Court may order that an amount be retained, allotted, and applied for the support, maintenance, and benefit of the common law spouse.  Nunavut  Family property provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - ‘Spouse’ includes common law partner, spouse may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children. Minimum two-year cohabitation required OR child and ‘relationship of some permanence’.  (two years of cohabitation)    Division of property  Spousal support  Intestate death  British Columbia (two years of cohabitation)  Rules that apply to an unmarried spouse’s claim for the division of property and debt under British Columbia’s Family Law Act are exactly the same as those that apply to married spouses. Partners are entitled to half of shared debts and assets. May also seek orders about the division of property and debt.  - Eligible to seek a spousal support order.  - Unmarried spouse is entitled to a share of the estate under the Wills, Estates and Succession Act, as are the couple’s children. A spouse is entitled to receive the first $300,000 from the estate. If there are children from a prior relationship, the spouse is entitled to receive $150,000.  Alberta  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Under the Wills and Succession Act, the entire estate goes to the deceased’s AIP if there are no surviving descendants.  (three years of cohabitation; AIP)  - AIP may seek a grant of exclusive possession of the matrimonial home, an order with respect to property within the home, and with respect to exclusive use of household goods under Alberta’s Family Law Act.  - If AIP dies with descendants who are not also the descendants of the AIP, then the AIP will receive the greater of either 50% of the estate or the amount set by law under the regulations to the Wills and Succession Act.        - AIP may seek support as dependent.  Saskatchewan  - The same rules relating to the division of property at the end of a relationship apply to married and unmarried partners in Saskatchewan under the Family Property Act. (50/50 presumptive split)  - Eligible to seek a spousal support order.  - The Intestate Succession Act, and the Dependants’ Relief Act both treat married and common law couples who have cohabited for not less than two years the same.  (two years of cohabitation)  Manitoba  - Each partner is entitled to half the value of the property acquired by the couple during the time they lived together, including pensions: see The Common-law Partners’ Property and Related Amendments Act.  - Eligible to seek a spousal support order.  - If a common law partner dies intestate with no lineal descendants, the entire estate goes to the surviving common law partner: see The Intestate Succession Act.  (three years of cohabitation)  Ontario  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - No entitlement to share of estate (unless property owned jointly).  (three years of cohabitation)  - Unmarried spouse may seek only dependant’s relief under Part V of Succession Law Reform Act.        - 19 factors to consider under subsection 62(1).  Quebec  - No additional rights.  - Not eligible to seek a spousal support order. Article 585 only applies to spouses married or in a civil union.  - De facto spouses are not legal heirs under the law, Article 653. If a person living in a de facto union dies without a will, the estate is divided among the legal heirs of the deceased (children, father and mother, brothers and sisters, nieces and nephews).  (no amount of cohabitation yields rights to de facto spouses)  - Not entitled to the family residence protection the Civil Code of Quebec provides for individuals who are married or in a civil union.  Nova Scotia  - If couple files, then Matrimonial Property Act applies.  - Eligible to seek a spousal support order if cohabitated for two years, regardless of whether or not registered domestic partnership declaration exists.  - Unmarried spouses are having no presumptive rights under the Probate Act unless the couple has signed a ‘domestic partnership declaration’.  (must file ‘registered domestic partnership declaration’.)      - An unmarried spouse may bring a claim for property in court.  New Brunswick  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Devolution of Estates Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Newfoundland and Labrador  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Intestate Succession Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Prince Edward Island  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Probate Act.  (three years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Northwest Territories  Property Division provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - The Wills Act defines ‘spouse’ as having the same meaning as in the Family Law Act. Partner may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children.  (two years of cohabitation)  Yukon  - Equitable principles of common law apply.  - Eligible to seek a spousal support order if couple lived together in a relationship of ‘some permanence’.  - The Estate Administration Act makes provisions for common law spouses.  (12 months of cohabitation (for Estate Administration Act))      - Court may order that an amount be retained, allotted, and applied for the support, maintenance, and benefit of the common law spouse.  Nunavut  Family property provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - ‘Spouse’ includes common law partner, spouse may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children. Minimum two-year cohabitation required OR child and ‘relationship of some permanence’.  (two years of cohabitation)  Note: The column on the left includes the amount of time, if applicable, of continuous cohabitation required for the rights listed to crystalize. However, in the case of each province where common law status is deemed after a certain period of time, the existence of a child of the couple precipitates common law status. Unless otherwise specified, ‘cohabitation’ means continuous cohabitation. Footnotes 1. Statutes in Canada use varying terms to describe unmarried cohabitants, including ‘common-law partners’, ‘adult interdependent partners’, and simply ‘spouses’. The authors use the term ‘unmarried cohabitants’ throughout this article to refer to the relationship discussed, or ‘spouses’ when rights flow from that relationship. 2. Statistics Canada, ‘Portrait of Families and Living Arrangements in Canada’ (2011) online: <http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-312-x/98-312-x2011001-eng.cfm>. 3. Before 1993, the spouse of an individual was a person to whom the individual was legally married. After 1992, the meaning of the term ‘spouse’ was extended by para 252(4)(a) of the Income Tax Act, RSC 1985, c 1 to include a common law spouse. For 2001 and subsequent tax years, the Income Tax Act refers to a spouse or common law partner. 4. Same-sex marriage was progressively introduced in several provinces by court decisions beginning in 2003 and became legally recognized nationwide with the enactment of the Civil Marriage Act, SC 2005, c 33 on 20 July 2005. At the time the bill became law, same-sex marriage had already been legalized by court decisions in all Canadian jurisdictions except Alberta, Prince Edward Island, the territories of Nunavut, and the Northwest Territories. The first provincial decision to find that denying same-sex couples the right to marry violated s 15 of the Canadian Charter of Rights and Freedoms was Barbeau v British Columbia (AG) (2003) BCCA 251. 5. Federalism is codified in pt 6 of the Constitution Act, 1867, 30 and 31 Vict, c 3. 6. The statute that governs divorce in Canada is the federal Divorce Act, RSC 1985, c 3. Section 92(13) of the Constitution Act, grants the provincial legislatures of Canada the authority to legislate on property and civil rights in their province. Section 91(23) codifies that marriage and divorce are within the exclusive legislative authority of the federal government. 7. One notable exception, discussed below, involves cohabiting couples in the province of British Columbia who are granted the same rights as married couples under the province’s Family Law Act, SBC 2011, c 25, once they have cohabitated continuously in a marriage-like relationship for two years. When married couples separate in Canada, specific provincial statutes apply to determine how their property will be divided. In Alberta the applicable legislation is the Matrimonial Property Act, RSA 2000, c M-8. In British Columbia, it is Pt 5 of the Family Law Act. Similarly, pt I (Family property) of Ontario’s Family Law Act, RSO 1990, c F.3 governs the division of matrimonial property in that province. 8. Income Tax Act, (n 3) s 248. If a person cohabits in a conjugal relationship, that person is deemed to be cohabitating in a conjugal relationship unless they are living separate and apart for a period of at least 90 days because of a breakdown in their conjugal relationship. 9. In Alberta, cohabitating spouses may sign an Adult Interdependent Partnership Agreement, and in Manitoba a couple may register their relationship with the Vital Statistics Agency. Similarly in Nova Scotia, the parties may file a declaration registering their domestic partnership. See Appendix A. 10. A resulting trust can be created when one spouse loans or transfers money to the other to allow him or her to purchase an asset, and the purchaser owns the asset in his or her name alone, or when one spouse transfers property to the other without payment. In each instance, the spouse who transfers the money or asset to the other retains a beneficial interest in the property even though the property is held by the other spouse in his or her name alone. Here, a court can award a non-owner a beneficial interest where he or she contributed directly to the purchase price. See Berend Hovius and Mary-Jo Maur, Hovius on Family Law (8th edn, Carswell 2013) 212. 11. In Rathwell v Rathwell (1978) 2 SCR 436, Justice Dixon stated (455) that ‘for the principle [of unjust enrichment] to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason – such as contract or disposition of law – for the enrichment’. The approach was further developed in Pettkus v Becker (1980) 2 SCR 834, where the court held that it would impose a trust on the respondent where the claimant is able to show that the respondent has been unjustly enriched as a result of the claimant’s labour or other services. Unjust enrichment is proven by demonstrating that (i) the respondent was enriched as a result of the claimant’s contributions, (ii) the claimant was correspondingly deprived, and (iii) there exists no legal reason for the respondent’s enrichment. If an unjust enrichment has been found, the court may then determine what the appropriate remedy would be to compensate the applicant for his or her interest in the property. Concrete values were attached to many domestic services offered inside the home, or to services and labour that benefit the value of a property. See Hovius and Maur (n 10). 12. The court will consider this remedy on a case-by-case basis with reference to four umbrella factors: mutual effort (decision to raise children together, length of the relationship), economic integration (co-mingling of finances or economic interests), priority of the family (assumptions about a shared future, for example, a relocation to benefit a partner’s career, or foregoing career or educational advancement for the benefit of the family), and actual intent (expressed conduct of one or both of the parties). Balancing these factors, the court will determine the extent to which the family lived as one unit and whether or not a joint family venture exists. The presumptive remedy is a monetary award, however, a proprietary award is available if the plaintiff can demonstrate that a monetary award would be in appropriate in the circumstances. See Kerr v Baranow (2011) 1 SCR 269. 13. See Kerr (n 12) and Vanasse v Seguin (2011) Carswell BC 241. 14. The requirement that unmarried family law litigants, who are often self-represented, appear in court to argue for these rights also raises many issues from an access-to-justice perspective. In a recent study conducted by Dr Julie Macfarlane as part of the National Self-Represented Litigants Project, she found that 60% of all self-represented litigants were family law litigants. See Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Final Report (2013) 546, online: <http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf> (accessed May 5, 2017). 15. See s 3 of pt 1 of the BC Family Law Act (n 7). 16. Once that two-year qualifying period has elapsed, the entire time of cohabitation will be taken into account. That is, the relationship as spouses is deemed to have begun two years prior, on the date the spouses began to cohabit. If relief is sought, it is likely that a court would take into consideration the length of such a relationship. 17. Part 5 of the BC Family Law Act deals with the division of family property and family debt between spouses. Section 3(4) of the Act discusses the separation of unmarried spouses. An unmarried spouse has two years from the date of separation to bring a claim for spousal support or division of property and debt. 18. See Megan Ellis and Matthew Ostrow, ‘Property & Debt in Family Law Matters’, in JP Boyd on Family Law (John-Paul Boyd and Courthouse Libraries BC, 2017), online: <http://wiki.clicklaw.bc.ca/index.php?title=Property_%26_Debt_in_Family_Law_Matters> (accessed May 5, 2017). 19. Family Law Act (BC), pt 5, Division 1. 20. pt 7, Division 4 of British Columbia’s Family Law Act outlines support obligations for spouses in the province. 21. Prior to a 2014 amendment to British Columbia’s Wills, Estates and Succession Act, 2009 SBC c 13, if there was no Will, a spouse received the first $65,000 of an intestate’s estate. Now the spouse receives the first $300,000 from the estate but if there are children from a prior relationship, the spouse only receives $150,000. 22. Adult Interdependent Relationships Act (2002) SA c A-4.5 (hereafter AIRA). 23. SA 2003, c F-4.5. 24. AIRA (n 22) s 3. 25. ibid, s 1(1)(f). 26. ibid, s 2. 27. Adult interdependent partnerships can be ended in a number of ways. In addition to death of one parties or relationship breakdown, the partnership may be ended if the parties enter into a written agreement to end it, if the parties marry each other, if one of the parties marries someone else, or, in the case of a deemed partnership, if one party enters into an AIP agreement with a third party. See AIRA (n 22) s 10(1). Alberta’s Matrimonial Property Act applies only to married couples. Dower rights flowing from Alberta’s Dower Act, RSA 2000, c D-15 also only extend to those who are married. The courts can divide AIPs’ property based on the equitable principles and remedies discussed previously. The property can also be divided based on an agreement between the partners. 28. Alberta Family Law Act (n 22) ss 68(1)-(2) and 73(1). 29. ibid, s 57(2)(b). A court may apply the spousal support provisions of the Family Law Act if one or more of the parties apply for a support order after living in an Adult Interdependent Relationship. Some additional factors a court may consider in granting the order include the length of time the AIPs lived together, the functions performed by each party, any existing support arrangements, and the extent to which any other person living with the adult interdependent partner having the support obligation contributes towards household expenses (and thereby increases the ability of that AIP to provide support). If a court finds that an entitlement to support exists, the amount of support will be determined with consideration paid to the above factors along with the objectives of the support order, which include, inter alia recognizing any economic advantages and disadvantages to the AIP arising from the relationship or its breakdown, and promoting the economic self-sufficiency of each adult interdependent partner within a reasonable period of time. See Alberta’s Family Law Act (n 22) ss 56–63. 30. ibid, s 56. 31. An AIP is considered a ‘family member’ and ‘surviving spouse or partner’/for the purposes of Family Maintenance and Support in the Wills and Succession Act, SA 2010, c W-12.2, ss 72–75. 32. Estate Administration Act, SA 2014, c E-12.5, s 13(1)(b)(i). 33. Wills and Succession Act (n 31). 34. ibid, s 75(1). 35. ibid, ss 60–62. 36. ibid, s 23(2)(b). 37. In the Ontario Family Law Act (n 7), ‘spouse’ is defined in s 1(1) as either of two persons who are married to each other, or ‘have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right’. 38. See the definition of ‘spouse’ with respect to pt III of Ontario’s Family Law Act (n 7). 39. In contrast, a married spouse in Ontario may be granted special possessory rights to the matrimonial home under the Ontario Family Law Act, pt II, s 19, and entitlements to equalization of net family property acquired during their relationship under pt 1. 40. ibid, pt III. In Ontario, there is no limitation on an application for spousal support in Ontario, but a claim will be stronger the more proximate it is to the date of separation. See also Appendix A. 41. s 33(9) of Ontario’s Family Law Act (n 7). 42. RSO 1990, c S.26. 43. It is the same definition as found in s 1 of Ontario's Family Law Act (n 7). In the recent case of Stajduhar v Wolfe (2017) ONSC 4954, a continuous committed and romantic relationship was insufficient to mount a claim for dependant’s relief where the dependant seeking relief under the Act was unable to prove she had cohabited with the deceased continuously for a three-year period. 44. See Ontario’s Succession Law Reform Act (n 42) pt II, s 46. 45. ibid, pt V. 46. The definition of ‘spouse’ is broader—borrowed from s 29 of Ontario’s Family Law Act instead of s 1. 47. The Supreme Court of Canada ruled in January 2013 that it was within the power of the provinces to decide if and when unmarried cohabitants should get the same rights as married couples, and so has allowed Quebec to continue excluding unmarried cohabitants from being recognized no matter how long the couple has lived together. See Quebec (Attorney General) v A (2013) SCC 5. In that case, art 585 of Quebec’s Civil Code, which entitles support to spouses, was found to violate s 15 of Canada’s Charter of Rights and Freedoms, but that violation was found ultimately to be justified under s 1 by a 5:4 majority. See Droit de la famille—091768, 2009 QCCS 3210 and Quebec (AG) v A for a discussion of the reasons behind the permissibility of this regime. 48. In fact, the proportion of common law couples in Quebec is higher than in all other countries for which data is available. See Statistics Canada (n 2). 49. Quebec Civil Code, Book 2: ‘The Family’, Title One, arts 521.1–521.19. 50. See Quebec v A (n 47) para 284 and Justice Quebec, De Facto Union (2017) online: <https://www.justice.gouv.qc.ca/en/couples-and-families/marriage-civil-union-and-de-facto-union/de-facto-union> (accessed May 5, 2017). 51. Quebec Civil Code, Division II, art 401. 52. Because child support is the right of the child and dealt with federally under the Federal Child Support Guidelines, SOR 97-175, amounts are determined the same way as in a divorce. Indeed, this is true for all other provinces in Canada. 53. Quebec Civil Code, Book Three, Title One, Heirship, art 653. 54. For example, the required period is two years in British Columbia and three years in Alberta. © The Author (2017). Published by Oxford University Press. All rights reserved. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Trusts & Trustees Oxford University Press

The rights of unmarried cohabitants in Canada

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Oxford University Press
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© The Author (2017). Published by Oxford University Press. All rights reserved.
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1752-2110
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10.1093/tandt/ttx189
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Abstract

Abstract The number of unmarried, cohabitating couples in Canada has increased steadily over the past 50 years. The rights and remedies that flow from these relationships vary widely across Canada’s provinces and territories.1 The authors survey the laws of four provinces (British Columbia, Alberta, Ontario, and Quebec) as illustrative in three distinct areas: property rights, spousal support, and rights on a partner’s intestate death. Tax issues arising in these three areas are also considered. Introduction The portrait of family organization and living arrangements in Canada has been changing steadily over the past 50 years.2 In 1961, married couples accounted for 91.6 per cent of Canadian families. By 2011, that share dipped to 67 per cent. What constitutes a family in Canada has also transformed dramatically. In 1993 unmarried cohabitants were recognized for the first time as spouses, termed common law partners, for federal income tax purposes.3 In 2005 same-sex partners could be legally married in Canada and the legal and property rights of unmarried cohabitating same-sex couples are now recognized by many of the provinces.4 Notwithstanding the increase in the number of unmarried cohabitants in Canada, the rights of cohabitating couples remain far from clear. This is the result of both Canada’s constitutional framework and its civil and common law traditions. Canada is a country made up of 10 provinces and three territories. Central to the organization of government in Canada is the principle of federalism.5 Under this principle, Canada is divided into two constitutionally autonomous levels of government—federal and provincial—each with distinct powers. While marriage and divorce are within the exclusive legislative authority of the federal government, each provincial government has the authority to legislate on property and civil rights in their province.6 As a result, the rights of unmarried cohabitating couples, if any, must be determined based on the law of the particular province. These rights differ from the rights of married couples in a number of ways, though there are some similarities.7 For example, most provinces do not have legislation to address the division of assets on the breakdown of a relationship between unmarried cohabitants. However, all provinces except Quebec have legislation that addresses the rights and obligations of unmarried cohabitants related to support, and some provinces address rights on death. Where no provincial statute applies, unmarried cohabitants must rely on common law principles, including equitable principles, in the common law provinces and on civil law principles in the province of Quebec. For the purpose of this article, the rights of an unmarried cohabitant in four provinces (British Columbia, Alberta, Ontario, and Quebec) have been selected as illustrative of the full variety of statutory provisions in existence in Canada. Appendix A contains a summary of these rights in all provinces and territories across Canada. The discussion begins with a consideration of how federal and provincial legislation applies to unmarried cohabitants. An overview of the equitable remedies available in the common law provinces with respect to property division on separation follows. The statutory provisions of the three common law provinces (British Columbia, Alberta, and Ontario) are next considered as they relate to the rights of unmarried cohabitants. Finally, the article discusses the rights of cohabitants under the civil law regime in the province of Quebec. Who is an unmarried cohabitant? Who is an unmarried cohabitant and when such an individual is accorded legal entitlements or property rights varies widely across Canada. For federal tax purposes, the Income Tax Act defines a common law partner as a person who cohabits in a conjugal relationship with the taxpayer either for a 12-month period, or who is the parent of a child of the taxpayer.8 With respect to property rights and spousal support entitlements, the most important factor is whether an individual meets the definition of ‘spouse’ under applicable provincial laws. In addition to the specific rights afforded, the criteria for who is considered a spouse vary widely across the provinces but generally require cohabitation for a minimum of at least two years unless an agreement or declaration is entered into by the unmarried cohabitants.9 Equitable remedies for unmarried cohabitants For the most part, provincial legislation does not address the division of property on the breakdown of the relationship between unmarried cohabitants. In these circumstances the only property that an unmarried cohabitating spouse is presumptively entitled to, without a need to take legal action, is property owned by that spouse, or jointly owned with his or her spouse. If one spouse claims an entitlement to property owned solely in the name of the other, the non-owning spouse must rely on equitable remedies in the common law provinces where no statutory relief is available. This requires that the spouse seeking entitlement to an asset prove an entitlement. The equitable claim made by the non-owning spouse is usually based on the existence of a resulting trust,10 or unjust enrichment, for which the remedy is a constructive trust.11 The more common claim is unjust enrichment. To succeed in a claim for unjust enrichment, the claimant spouse must show that their spouse has been unjustly enriched, generally as a result of the claimant’s labour or other services. Historically, the monetary value of a successful unjust enrichment claim was measured on a ‘quantum meruit’ or fee for service basis. In 2011, the Supreme Court of Canada introduced a significant change to the determination of the monetary award for unmarried cohabitants who separate, if the spouses were engaged in a ‘joint family venture’.12 Specifically, the Court found that if the unjust enrichment claim was based on an unjust retention of a disproportionate share of assets accumulated in a joint family venture to which both partners contributed, the monetary remedy for unjust enrichment was to be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.13 This could result in a significantly higher award for the claimant spouse than would result from a quantum meruit claim. In addition to these equitable remedies for the division of property, unmarried cohabitants may also look to other provincial statutes for support obligations and rights on death. There are numerous access to justice concerns beyond the scope of this article for spouses who may have valid entitlements, but are forced to go through the process of seeking equitable remedies in court. 14 British Columbia British Columbia is the friendliest province to unmarried cohabitating couples as the result of an amendment to the definition of ‘spouse’ in the British Columbia Family Law Act.15 Since 2013, couples living together in a marriage-like relationship for at least two years, or for less time if they have a child together, have the same rights as their married counterparts.16 Division of property In general, upon the breakdown of the relationship, unmarried cohabitants who meet the definition of ‘spouse’ are entitled to half of the family property and family debt.17 All property owned by either or both spouses at the date of separation is considered to be family property (such as real property or bank accounts) unless it is excluded property (such as inheritances, certain gifts or court awards, or property bought with property brought into the relationship). As a general rule, excluded property is presumed to remain the property of the spouse who owns it, but the increase in value of the excluded property becomes family property and is shared.18 All debt that is incurred by either or both spouses from the date the spouses began living together to the date of separation is family debt. Responsibility for family debt is presumed to be shared equally between spouses, regardless of their use of or contribution to that debt.19 Support Unmarried spouses who separate are entitled to the same benefits and obligations with respect to spousal support as their married counterparts.20 Death If an unmarried spouse dies intestate in British Columbia, his or her spouse is entitled to a share of the estate, as are the couple’s children. The share will vary depending on whether the deceased had children from another relationship.21 Income tax An unmarried cohabitant that meets the definition of spouse in British Columbia will also meet the definition of spouse or common law partner for income tax purposes and will, therefore, be able to rely on federal tax provisions with respect to the deductibility of support payments and in respect of the tax-free transfers of property between the unmarried cohabitants both inter vivos and on death. Alberta The law governing unmarried cohabitants generally in Alberta is the Adult Interdependent Relationships Act.22 Property rights and spousal support of Adult Interdependent Partners (AIPs) are, however, regulated under Alberta’s Family Law Act.23 Unlike British Columbia’s legislation, if two unmarried individuals cohabit for an extended period of time, Alberta’s legislation does not confer upon AIPs all of the rights of married spouses. To be considered an AIP, couples must either live together in a ‘relationship of interdependence’ for at least three consecutive years, or live together in a relationship of interdependence ‘of some permanence’ for less than three years if there is a child of the relationship (either by birth or adoption). Alternatively, couples may enter into a written AIP Agreement together and forego the three-year requirement.24 The Act defines a ‘relationship of interdependence’ as a relationship outside marriage in which two people share one another’s lives, are emotionally committed to one another, and function as an economic and domestic unit.25 The relationship does not have to be conjugal to meet these criteria. The Act lists factors to be considered to determine if the couple functions as an economic and domestic unit. These include:26 whether or not the persons have a conjugal relationship; the degree of exclusivity of the relationship; the conduct and habits of the persons in respect of household activities and living arrangements; the degree to which the persons hold themselves out to others as an economic and domestic unit; the degree to which the persons formalize their legal obligations, intentions, and responsibilities towards one another; the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being; the degree of financial dependence or interdependence and any arrangements for financial support between the persons; the care and support of children; and the ownership, use, and acquisition of property. Persons who are cohabitating but who do not want to be considered AIPs under the Alberta Act may enter into an agreement to clarify their intentions. However, if the parties are in fact in a ‘relationship of interdependence’ or have children together, that agreement may be ineffective to prevent claims against the other. Division of property There is no statute in Alberta that deals with division of property when an adult’s interdependent partnership ends.27 However, the Alberta Family Law Act does confer limited property rights upon AIPs. For example, a court may grant exclusive possession of the matrimonial home, make an order with respect to property within the home, and grant exclusive use of household goods.28 Support An AIP may make a court application for a support order where the relationship has broken down.29 While the AIRA contains no provisions related to support, Alberta’s Family Law Act includes AIPS in Division 2, Support of Spouse or Adult Interdependent Partner.30 Death On the death of an AIP, the surviving AIP can apply for relief from an intestacy or the terms of a Will where inadequate provision has been made for them.31 If no Will exists, priority is given first to the ‘surviving spouse or adult interdependent partner’ applying for a grant of probate or administration.32 The Wills and Succession Act33 also gives a limited right for a surviving adult interdependent partner to stay in the deceased person’s home for 90 days.34 When an AIP dies intestate, that AIP’s entire estate goes to his or her partner if there are no surviving descendants. If an AIP dies intestate and leaves his or her AIP and one or more descendants, and the descendants are also the descendants of the surviving AIP, then the entire estate goes to the surviving AIP. If an AIP dies intestate and leaves descendants who are not also the descendants of the AIP, then the AIP will receive the greater of either 50 per cent of the estate or the amount set by law under the regulations to the Wills and Succession Act.35 Entering into an adult interdependent relationship does not revoke or cancel all or any part of a Will.36 Where a Will exists, rules of intestate succession may be varied. However, a surviving partner may still challenge his or her AIP’s Will through dependant’s relief legislation, if adequate support was not provided. Income tax An AIP may not be considered a spouse or common law partner for income tax purposes. For example, because of the option to enter into a written AIP Agreement at the outset of a relationship, it is possible that an AIP, for a time, may not meet the definition of a common law partner in the Income Tax Act, which requires continuous cohabitation for 12months if there are no children. An AIP who is a related person will also, no doubt, have difficulty meeting the federal tax requirement that the couple live in a conjugal relationship. As a result an AIP may not be able to claim that their partner is a common law partner for tax purposes or rely, on the tax reliefs, including the transfer of property on a tax deferred basis, available for spouses or common law partners both inter vivos and on death. Ontario To be afforded the rights of a spouse in Ontario, the couple must be married.37 There is an exception to this general rule with respect to support obligations and when seeking relief as a dependent on a partner’s death. For those purposes, the definition of ‘spouse’ additionally includes either of two persons who are not married to each other and who have cohabited continuously for a period of not less than three years, or who are in a relationship of some permanence, if they are the parents of a child.38 Division of property There are no statutory property rights conferred upon unmarried cohabitants in Ontario, regardless of how long the couple cohabits.39 The rights, if any, of an unmarried cohabitant are based on the aforementioned equitable claims and in particular the claim of unjust enrichment. Support Once an unmarried cohabitant is considered to be a spouse for spousal support purposes, the spouses have same rights and obligations regarding spousal support as if they were married.40 The entitlement and amount of spousal support will depend on factors including the spouses’ age, income, assets, health, and other enumerated criteria in the Ontario Family Law Act.41 Death Very few property rights exist for unmarried cohabitants under Ontario’s intestate succession legislation. This is because the definition of ‘spouse’ used in Ontario’s Succession Law Reform Act42 is limited to married spouses.43 If an unmarried cohabitant dies intestate, no provisions entitle his or her partner to a share of the estate, unlike in Alberta and British Columbia. Unless property is owned jointly, Ontario’s intestacy laws give the deceased’s property to surviving children and other relatives.44 However, this lack of entitlement can be mitigated in Ontario by the seeking of dependant’s relief under Ontario’s Succession Law Reform Act.45 For purposes of relief under Part V of the Succession Law Reform Act, a broader definition of spouse is used and includes either of two persons who are not married to each other but have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence, if they are the parents of a child.46 Income tax An unmarried cohabitant that meets the definition of spouse in Ontario will also meet the definition of spouse or common law partner for income tax purposes and will, therefore, be able to rely on federal tax provisions with respect to the deductibility of support payments and in respect of the tax-free transfers of property between the unmarried cohabitants both inter vivos and on death. Quebec The province of Quebec has, until now, been left out of comparative discussion. This is largely due to the great disparity between its laws governing spouses in this province and the laws of the rest of Canada. Quebec offers the fewest rights to unmarried cohabitants in all of Canada.47 This is interesting when one considers that the province has the highest proportion of unmarried cohabitants in Canada.48 It should be noted that in addition to a traditional marriage, couples in Quebec have the option of entering into a civil union whereby they publicly commit by contract, in front of a priest or pastor or notary, to a life together.49 The union grants rights and imposes obligations on both partners as a marriage would, but such unions still differ from matrimony in the sense that a civil union may, under certain conditions, be dissolved by a simple joint declaration before a notary. Unmarried cohabitants in Quebec are called de facto spouses.50 Citing a respect for the freedom of choice of couples living in a de facto union, lawmakers in the province have deliberately chosen not to extend to these couples the same rights and responsibilities that married or civil union couples have under the Civil Code of Quebec. This is true regardless of the number of years of cohabitation. It is often urged that de facto spouses in Quebec enter into a cohabitation contract to ease property division in the event of relationship breakdown. Division of Property With respect to the family residence, persons living in a de facto union in Quebec are not entitled to the family residence protection the Civil Code of Québec provides for individuals who are married or in a civil union.51 Support When a relationship between unmarried cohabitants in Quebec breaks down, there are no spousal support obligations or entitlements as there are in the previous three jurisdictions discussed.52 Death Unmarried cohabitants are not legal heirs of each other under Quebec’s Civil Code.53 If a person living in a de facto union dies without a will, the estate is divided among the legal heirs of the deceased according to the succession rules of the Civil Code of Québec—rules that progress through family members but notably exclude unmarried cohabitants (de facto spouses). Income tax An unmarried cohabitant that meets the definition of spouse in Quebec will also meet the definition of spouse or common law partner for income tax purposes and will, therefore, be able to rely on federal tax provisions with respect to the deductibility of support payments and in respect of the tax-free transfers of property between the unmarried cohabitants both inter vivos and on death. Conclusions The rights of unmarried cohabitants across Canada are governed by a patchwork of statutory provisions and non-statutory principles. For individuals who choose not to marry, it would be wise not to ignore the rights accorded to unmarried cohabitants or the lack of clarity about these entitlements in many of the provinces. The largest statutory gap appears to be with respect to the division of property. In two of the three common law provinces under review, where an unmarried spouse claims an interest in property in which he or she is not a joint owner or on title, that spouse is required to rely on principles of equity to resolve the dispute. In these situations, the property at issue is often substantial—for example, a couple’s home. It follows that joint home ownership provides the most certainty for unmarried cohabitants. The same holds true for the purchase of other immovable property. Considerable uncertainly also remains around the rights of couples who cohabit for an extended period of time but end their relationship before the crystallization of their rights as common law couples, under applicable provincial legislation.54 If unmarried cohabitants have a child together, these timing requirements are further complicated. In summary, unmarried cohabitants seeking to exercise their rights on the breakdown of their relationship or on the death of one of the cohabitants are required to navigate a complex and uncertain legal path. A well-drafted cohabitation agreement that sets out the rights of the parties may ease some of this uncertainty. Catherine Brown is a professor at the Faculty of Law, University of Calgary and the author of Taxation and Estate Planning as well as numerous publications. She is a member of the Ontario and Alberta Bars, a past Governor of the Canadian Tax Foundation and a current member of STEP Canada. Kyle Gardiner is a 2017 Juris Doctor graduate from the University of Calgary Faculty of Law. During his law degree, Kyle was a recipient of the Shea Nerland Calnan Research Fellowship in tax law, the Dean Michael Wylie Social Responsibility Award, and the Hon. Cecilia Johnstone Equality Award. He is currently articling with in-house legal counsel at the University of Calgary. Appendix A: Property rights of unmarried cohabitants in Canadian provinces and territories   Division of property  Spousal support  Intestate death  British Columbia (two years of cohabitation)  Rules that apply to an unmarried spouse’s claim for the division of property and debt under British Columbia’s Family Law Act are exactly the same as those that apply to married spouses. Partners are entitled to half of shared debts and assets. May also seek orders about the division of property and debt.  - Eligible to seek a spousal support order.  - Unmarried spouse is entitled to a share of the estate under the Wills, Estates and Succession Act, as are the couple’s children. A spouse is entitled to receive the first $300,000 from the estate. If there are children from a prior relationship, the spouse is entitled to receive $150,000.  Alberta  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Under the Wills and Succession Act, the entire estate goes to the deceased’s AIP if there are no surviving descendants.  (three years of cohabitation; AIP)  - AIP may seek a grant of exclusive possession of the matrimonial home, an order with respect to property within the home, and with respect to exclusive use of household goods under Alberta’s Family Law Act.  - If AIP dies with descendants who are not also the descendants of the AIP, then the AIP will receive the greater of either 50% of the estate or the amount set by law under the regulations to the Wills and Succession Act.        - AIP may seek support as dependent.  Saskatchewan  - The same rules relating to the division of property at the end of a relationship apply to married and unmarried partners in Saskatchewan under the Family Property Act. (50/50 presumptive split)  - Eligible to seek a spousal support order.  - The Intestate Succession Act, and the Dependants’ Relief Act both treat married and common law couples who have cohabited for not less than two years the same.  (two years of cohabitation)  Manitoba  - Each partner is entitled to half the value of the property acquired by the couple during the time they lived together, including pensions: see The Common-law Partners’ Property and Related Amendments Act.  - Eligible to seek a spousal support order.  - If a common law partner dies intestate with no lineal descendants, the entire estate goes to the surviving common law partner: see The Intestate Succession Act.  (three years of cohabitation)  Ontario  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - No entitlement to share of estate (unless property owned jointly).  (three years of cohabitation)  - Unmarried spouse may seek only dependant’s relief under Part V of Succession Law Reform Act.        - 19 factors to consider under subsection 62(1).  Quebec  - No additional rights.  - Not eligible to seek a spousal support order. Article 585 only applies to spouses married or in a civil union.  - De facto spouses are not legal heirs under the law, Article 653. If a person living in a de facto union dies without a will, the estate is divided among the legal heirs of the deceased (children, father and mother, brothers and sisters, nieces and nephews).  (no amount of cohabitation yields rights to de facto spouses)  - Not entitled to the family residence protection the Civil Code of Quebec provides for individuals who are married or in a civil union.  Nova Scotia  - If couple files, then Matrimonial Property Act applies.  - Eligible to seek a spousal support order if cohabitated for two years, regardless of whether or not registered domestic partnership declaration exists.  - Unmarried spouses are having no presumptive rights under the Probate Act unless the couple has signed a ‘domestic partnership declaration’.  (must file ‘registered domestic partnership declaration’.)      - An unmarried spouse may bring a claim for property in court.  New Brunswick  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Devolution of Estates Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Newfoundland and Labrador  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Intestate Succession Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Prince Edward Island  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Probate Act.  (three years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Northwest Territories  Property Division provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - The Wills Act defines ‘spouse’ as having the same meaning as in the Family Law Act. Partner may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children.  (two years of cohabitation)  Yukon  - Equitable principles of common law apply.  - Eligible to seek a spousal support order if couple lived together in a relationship of ‘some permanence’.  - The Estate Administration Act makes provisions for common law spouses.  (12 months of cohabitation (for Estate Administration Act))      - Court may order that an amount be retained, allotted, and applied for the support, maintenance, and benefit of the common law spouse.  Nunavut  Family property provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - ‘Spouse’ includes common law partner, spouse may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children. Minimum two-year cohabitation required OR child and ‘relationship of some permanence’.  (two years of cohabitation)    Division of property  Spousal support  Intestate death  British Columbia (two years of cohabitation)  Rules that apply to an unmarried spouse’s claim for the division of property and debt under British Columbia’s Family Law Act are exactly the same as those that apply to married spouses. Partners are entitled to half of shared debts and assets. May also seek orders about the division of property and debt.  - Eligible to seek a spousal support order.  - Unmarried spouse is entitled to a share of the estate under the Wills, Estates and Succession Act, as are the couple’s children. A spouse is entitled to receive the first $300,000 from the estate. If there are children from a prior relationship, the spouse is entitled to receive $150,000.  Alberta  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Under the Wills and Succession Act, the entire estate goes to the deceased’s AIP if there are no surviving descendants.  (three years of cohabitation; AIP)  - AIP may seek a grant of exclusive possession of the matrimonial home, an order with respect to property within the home, and with respect to exclusive use of household goods under Alberta’s Family Law Act.  - If AIP dies with descendants who are not also the descendants of the AIP, then the AIP will receive the greater of either 50% of the estate or the amount set by law under the regulations to the Wills and Succession Act.        - AIP may seek support as dependent.  Saskatchewan  - The same rules relating to the division of property at the end of a relationship apply to married and unmarried partners in Saskatchewan under the Family Property Act. (50/50 presumptive split)  - Eligible to seek a spousal support order.  - The Intestate Succession Act, and the Dependants’ Relief Act both treat married and common law couples who have cohabited for not less than two years the same.  (two years of cohabitation)  Manitoba  - Each partner is entitled to half the value of the property acquired by the couple during the time they lived together, including pensions: see The Common-law Partners’ Property and Related Amendments Act.  - Eligible to seek a spousal support order.  - If a common law partner dies intestate with no lineal descendants, the entire estate goes to the surviving common law partner: see The Intestate Succession Act.  (three years of cohabitation)  Ontario  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - No entitlement to share of estate (unless property owned jointly).  (three years of cohabitation)  - Unmarried spouse may seek only dependant’s relief under Part V of Succession Law Reform Act.        - 19 factors to consider under subsection 62(1).  Quebec  - No additional rights.  - Not eligible to seek a spousal support order. Article 585 only applies to spouses married or in a civil union.  - De facto spouses are not legal heirs under the law, Article 653. If a person living in a de facto union dies without a will, the estate is divided among the legal heirs of the deceased (children, father and mother, brothers and sisters, nieces and nephews).  (no amount of cohabitation yields rights to de facto spouses)  - Not entitled to the family residence protection the Civil Code of Quebec provides for individuals who are married or in a civil union.  Nova Scotia  - If couple files, then Matrimonial Property Act applies.  - Eligible to seek a spousal support order if cohabitated for two years, regardless of whether or not registered domestic partnership declaration exists.  - Unmarried spouses are having no presumptive rights under the Probate Act unless the couple has signed a ‘domestic partnership declaration’.  (must file ‘registered domestic partnership declaration’.)      - An unmarried spouse may bring a claim for property in court.  New Brunswick  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Devolution of Estates Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Newfoundland and Labrador  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Intestate Succession Act.  (two years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Prince Edward Island  - Equitable principles of common law apply.  - Eligible to seek a spousal support order.  - Unmarried cohabitants have no presumptive rights under the Probate Act.  (three years of cohabitation)      - An unmarried spouse may bring a claim for property in court.  Northwest Territories  Property Division provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - The Wills Act defines ‘spouse’ as having the same meaning as in the Family Law Act. Partner may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children.  (two years of cohabitation)  Yukon  - Equitable principles of common law apply.  - Eligible to seek a spousal support order if couple lived together in a relationship of ‘some permanence’.  - The Estate Administration Act makes provisions for common law spouses.  (12 months of cohabitation (for Estate Administration Act))      - Court may order that an amount be retained, allotted, and applied for the support, maintenance, and benefit of the common law spouse.  Nunavut  Family property provisions of the Family Law Act apply.  - Eligible to seek a spousal support order.  - ‘Spouse’ includes common law partner, spouse may receive preferential share of $50,000 of estate, with remaining assets divided between spouse and children. Minimum two-year cohabitation required OR child and ‘relationship of some permanence’.  (two years of cohabitation)  Note: The column on the left includes the amount of time, if applicable, of continuous cohabitation required for the rights listed to crystalize. However, in the case of each province where common law status is deemed after a certain period of time, the existence of a child of the couple precipitates common law status. Unless otherwise specified, ‘cohabitation’ means continuous cohabitation. Footnotes 1. Statutes in Canada use varying terms to describe unmarried cohabitants, including ‘common-law partners’, ‘adult interdependent partners’, and simply ‘spouses’. The authors use the term ‘unmarried cohabitants’ throughout this article to refer to the relationship discussed, or ‘spouses’ when rights flow from that relationship. 2. Statistics Canada, ‘Portrait of Families and Living Arrangements in Canada’ (2011) online: <http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-312-x/98-312-x2011001-eng.cfm>. 3. Before 1993, the spouse of an individual was a person to whom the individual was legally married. After 1992, the meaning of the term ‘spouse’ was extended by para 252(4)(a) of the Income Tax Act, RSC 1985, c 1 to include a common law spouse. For 2001 and subsequent tax years, the Income Tax Act refers to a spouse or common law partner. 4. Same-sex marriage was progressively introduced in several provinces by court decisions beginning in 2003 and became legally recognized nationwide with the enactment of the Civil Marriage Act, SC 2005, c 33 on 20 July 2005. At the time the bill became law, same-sex marriage had already been legalized by court decisions in all Canadian jurisdictions except Alberta, Prince Edward Island, the territories of Nunavut, and the Northwest Territories. The first provincial decision to find that denying same-sex couples the right to marry violated s 15 of the Canadian Charter of Rights and Freedoms was Barbeau v British Columbia (AG) (2003) BCCA 251. 5. Federalism is codified in pt 6 of the Constitution Act, 1867, 30 and 31 Vict, c 3. 6. The statute that governs divorce in Canada is the federal Divorce Act, RSC 1985, c 3. Section 92(13) of the Constitution Act, grants the provincial legislatures of Canada the authority to legislate on property and civil rights in their province. Section 91(23) codifies that marriage and divorce are within the exclusive legislative authority of the federal government. 7. One notable exception, discussed below, involves cohabiting couples in the province of British Columbia who are granted the same rights as married couples under the province’s Family Law Act, SBC 2011, c 25, once they have cohabitated continuously in a marriage-like relationship for two years. When married couples separate in Canada, specific provincial statutes apply to determine how their property will be divided. In Alberta the applicable legislation is the Matrimonial Property Act, RSA 2000, c M-8. In British Columbia, it is Pt 5 of the Family Law Act. Similarly, pt I (Family property) of Ontario’s Family Law Act, RSO 1990, c F.3 governs the division of matrimonial property in that province. 8. Income Tax Act, (n 3) s 248. If a person cohabits in a conjugal relationship, that person is deemed to be cohabitating in a conjugal relationship unless they are living separate and apart for a period of at least 90 days because of a breakdown in their conjugal relationship. 9. In Alberta, cohabitating spouses may sign an Adult Interdependent Partnership Agreement, and in Manitoba a couple may register their relationship with the Vital Statistics Agency. Similarly in Nova Scotia, the parties may file a declaration registering their domestic partnership. See Appendix A. 10. A resulting trust can be created when one spouse loans or transfers money to the other to allow him or her to purchase an asset, and the purchaser owns the asset in his or her name alone, or when one spouse transfers property to the other without payment. In each instance, the spouse who transfers the money or asset to the other retains a beneficial interest in the property even though the property is held by the other spouse in his or her name alone. Here, a court can award a non-owner a beneficial interest where he or she contributed directly to the purchase price. See Berend Hovius and Mary-Jo Maur, Hovius on Family Law (8th edn, Carswell 2013) 212. 11. In Rathwell v Rathwell (1978) 2 SCR 436, Justice Dixon stated (455) that ‘for the principle [of unjust enrichment] to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason – such as contract or disposition of law – for the enrichment’. The approach was further developed in Pettkus v Becker (1980) 2 SCR 834, where the court held that it would impose a trust on the respondent where the claimant is able to show that the respondent has been unjustly enriched as a result of the claimant’s labour or other services. Unjust enrichment is proven by demonstrating that (i) the respondent was enriched as a result of the claimant’s contributions, (ii) the claimant was correspondingly deprived, and (iii) there exists no legal reason for the respondent’s enrichment. If an unjust enrichment has been found, the court may then determine what the appropriate remedy would be to compensate the applicant for his or her interest in the property. Concrete values were attached to many domestic services offered inside the home, or to services and labour that benefit the value of a property. See Hovius and Maur (n 10). 12. The court will consider this remedy on a case-by-case basis with reference to four umbrella factors: mutual effort (decision to raise children together, length of the relationship), economic integration (co-mingling of finances or economic interests), priority of the family (assumptions about a shared future, for example, a relocation to benefit a partner’s career, or foregoing career or educational advancement for the benefit of the family), and actual intent (expressed conduct of one or both of the parties). Balancing these factors, the court will determine the extent to which the family lived as one unit and whether or not a joint family venture exists. The presumptive remedy is a monetary award, however, a proprietary award is available if the plaintiff can demonstrate that a monetary award would be in appropriate in the circumstances. See Kerr v Baranow (2011) 1 SCR 269. 13. See Kerr (n 12) and Vanasse v Seguin (2011) Carswell BC 241. 14. The requirement that unmarried family law litigants, who are often self-represented, appear in court to argue for these rights also raises many issues from an access-to-justice perspective. In a recent study conducted by Dr Julie Macfarlane as part of the National Self-Represented Litigants Project, she found that 60% of all self-represented litigants were family law litigants. See Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Final Report (2013) 546, online: <http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf> (accessed May 5, 2017). 15. See s 3 of pt 1 of the BC Family Law Act (n 7). 16. Once that two-year qualifying period has elapsed, the entire time of cohabitation will be taken into account. That is, the relationship as spouses is deemed to have begun two years prior, on the date the spouses began to cohabit. If relief is sought, it is likely that a court would take into consideration the length of such a relationship. 17. Part 5 of the BC Family Law Act deals with the division of family property and family debt between spouses. Section 3(4) of the Act discusses the separation of unmarried spouses. An unmarried spouse has two years from the date of separation to bring a claim for spousal support or division of property and debt. 18. See Megan Ellis and Matthew Ostrow, ‘Property & Debt in Family Law Matters’, in JP Boyd on Family Law (John-Paul Boyd and Courthouse Libraries BC, 2017), online: <http://wiki.clicklaw.bc.ca/index.php?title=Property_%26_Debt_in_Family_Law_Matters> (accessed May 5, 2017). 19. Family Law Act (BC), pt 5, Division 1. 20. pt 7, Division 4 of British Columbia’s Family Law Act outlines support obligations for spouses in the province. 21. Prior to a 2014 amendment to British Columbia’s Wills, Estates and Succession Act, 2009 SBC c 13, if there was no Will, a spouse received the first $65,000 of an intestate’s estate. Now the spouse receives the first $300,000 from the estate but if there are children from a prior relationship, the spouse only receives $150,000. 22. Adult Interdependent Relationships Act (2002) SA c A-4.5 (hereafter AIRA). 23. SA 2003, c F-4.5. 24. AIRA (n 22) s 3. 25. ibid, s 1(1)(f). 26. ibid, s 2. 27. Adult interdependent partnerships can be ended in a number of ways. In addition to death of one parties or relationship breakdown, the partnership may be ended if the parties enter into a written agreement to end it, if the parties marry each other, if one of the parties marries someone else, or, in the case of a deemed partnership, if one party enters into an AIP agreement with a third party. See AIRA (n 22) s 10(1). Alberta’s Matrimonial Property Act applies only to married couples. Dower rights flowing from Alberta’s Dower Act, RSA 2000, c D-15 also only extend to those who are married. The courts can divide AIPs’ property based on the equitable principles and remedies discussed previously. The property can also be divided based on an agreement between the partners. 28. Alberta Family Law Act (n 22) ss 68(1)-(2) and 73(1). 29. ibid, s 57(2)(b). A court may apply the spousal support provisions of the Family Law Act if one or more of the parties apply for a support order after living in an Adult Interdependent Relationship. Some additional factors a court may consider in granting the order include the length of time the AIPs lived together, the functions performed by each party, any existing support arrangements, and the extent to which any other person living with the adult interdependent partner having the support obligation contributes towards household expenses (and thereby increases the ability of that AIP to provide support). If a court finds that an entitlement to support exists, the amount of support will be determined with consideration paid to the above factors along with the objectives of the support order, which include, inter alia recognizing any economic advantages and disadvantages to the AIP arising from the relationship or its breakdown, and promoting the economic self-sufficiency of each adult interdependent partner within a reasonable period of time. See Alberta’s Family Law Act (n 22) ss 56–63. 30. ibid, s 56. 31. An AIP is considered a ‘family member’ and ‘surviving spouse or partner’/for the purposes of Family Maintenance and Support in the Wills and Succession Act, SA 2010, c W-12.2, ss 72–75. 32. Estate Administration Act, SA 2014, c E-12.5, s 13(1)(b)(i). 33. Wills and Succession Act (n 31). 34. ibid, s 75(1). 35. ibid, ss 60–62. 36. ibid, s 23(2)(b). 37. In the Ontario Family Law Act (n 7), ‘spouse’ is defined in s 1(1) as either of two persons who are married to each other, or ‘have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right’. 38. See the definition of ‘spouse’ with respect to pt III of Ontario’s Family Law Act (n 7). 39. In contrast, a married spouse in Ontario may be granted special possessory rights to the matrimonial home under the Ontario Family Law Act, pt II, s 19, and entitlements to equalization of net family property acquired during their relationship under pt 1. 40. ibid, pt III. In Ontario, there is no limitation on an application for spousal support in Ontario, but a claim will be stronger the more proximate it is to the date of separation. See also Appendix A. 41. s 33(9) of Ontario’s Family Law Act (n 7). 42. RSO 1990, c S.26. 43. It is the same definition as found in s 1 of Ontario's Family Law Act (n 7). In the recent case of Stajduhar v Wolfe (2017) ONSC 4954, a continuous committed and romantic relationship was insufficient to mount a claim for dependant’s relief where the dependant seeking relief under the Act was unable to prove she had cohabited with the deceased continuously for a three-year period. 44. See Ontario’s Succession Law Reform Act (n 42) pt II, s 46. 45. ibid, pt V. 46. The definition of ‘spouse’ is broader—borrowed from s 29 of Ontario’s Family Law Act instead of s 1. 47. The Supreme Court of Canada ruled in January 2013 that it was within the power of the provinces to decide if and when unmarried cohabitants should get the same rights as married couples, and so has allowed Quebec to continue excluding unmarried cohabitants from being recognized no matter how long the couple has lived together. See Quebec (Attorney General) v A (2013) SCC 5. In that case, art 585 of Quebec’s Civil Code, which entitles support to spouses, was found to violate s 15 of Canada’s Charter of Rights and Freedoms, but that violation was found ultimately to be justified under s 1 by a 5:4 majority. See Droit de la famille—091768, 2009 QCCS 3210 and Quebec (AG) v A for a discussion of the reasons behind the permissibility of this regime. 48. In fact, the proportion of common law couples in Quebec is higher than in all other countries for which data is available. See Statistics Canada (n 2). 49. Quebec Civil Code, Book 2: ‘The Family’, Title One, arts 521.1–521.19. 50. See Quebec v A (n 47) para 284 and Justice Quebec, De Facto Union (2017) online: <https://www.justice.gouv.qc.ca/en/couples-and-families/marriage-civil-union-and-de-facto-union/de-facto-union> (accessed May 5, 2017). 51. Quebec Civil Code, Division II, art 401. 52. Because child support is the right of the child and dealt with federally under the Federal Child Support Guidelines, SOR 97-175, amounts are determined the same way as in a divorce. Indeed, this is true for all other provinces in Canada. 53. Quebec Civil Code, Book Three, Title One, Heirship, art 653. 54. For example, the required period is two years in British Columbia and three years in Alberta. © The Author (2017). Published by Oxford University Press. All rights reserved.

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Trusts & TrusteesOxford University Press

Published: Feb 1, 2018

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