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Common-Law
Calamities
Your legal rights are not the
same as those of a married spouse!
By Peter Lillico
Common-law relationships are a growing factor in Canada’s
social fabric, but the legal environment has not kept
pace with societal change. When relationships end, because
of death or separation, different rules apply to common-law
spouses than to married couples. For common-law couples
who haven’t made preparations, the laws can lead
to heartbreak.
When Aaron popped the question, Emily was speechless.
After her first husband died, she assumed she would
continue on by herself, keeping busy with grandchildren
and community activities. Now the possibility of remarriage
caught her completely off guard!
Emily met Aaron when he joined her church. He had sold
his farm a couple of months before and moved into her
town. They both sang in the choir and, after a while,
frequently found themselves enjoying a coffee together
after practice. Soon, social friendship became romantic
attraction. Before they knew it, a year had passed.
Emily was fond of Aaron and liked being with him. He
certainly doted on her, but she just wasn’t ready
to marry again. They talked a lot about it, and decided
on a compromise. She agreed to move in with him –
no commitments other than mutual respect and affection.
Life unfolded very well indeed. Emily and Aaron lived
happily together for several years. Emily’s initial
reservations faded as her confidence in her new relationship
bloomed. The topic of marriage came up from time to
time, but never seemed to be urgent.
Trouble came quickly, however, when Aaron passed away
after a heart attack. Emily was devastated by the loss
of her loved companion, but worse was to come. It turned
out that Aaron had never made a will. After the funeral,
Aaron’s kids were polite to Emily, but made it
very clear that the sooner she could vacate the home,
the better they would like it. They told her their lawyer
advised that as his next of kin, they were entitled
to his estate. They were sorry and hoped she understood,
but wanted to get everything settled as soon as possible.
Emily consulted her own lawyer in a panic. To her dismay,
she found out that in her province, when a common-law
spouse dies without a will, the partner has no legal
entitlement to inherit anything. She did not even have
the right to stay in the house after Aaron’s death.
Without any legal options, and too proud to beg his
children to reconsider, she packed up and moved out
as soon as she could find a room in a senior’s
residence.
Emily’s situation is tragic, but not at all uncommon
in Canada. In fact, common-law relationships are on
the increase. According to the 1996 Census Dictionary,
14 per cent of all cohabiting opposite-sex couples were
unmarried. Statistics Canada figures show that this
trend is on the rise. Between 1991 and 1996, the percentage
of common-law couples increased by almost 28 per cent.
Legal Traps and Pitfalls
Despite the increasing number of couples, young and
old, who are choosing to live common law rather than
marry, the laws of Canada have not kept pace with societal
change. Unlike the legal environment for married couples,
where the laws usually provide safety nets, common-law
spouses often walk a tightrope. Without taking positive
steps to protect themselves, they are at risk for a
variety of perils. Here are some examples:
As Emily learned too late, without a will, common-law
spouses are not entitled to inherit from their partner
in provinces other than British Columbia and Prince
Edward Island.
Amy and Mike lived together for over 30 years. They
considered themselves to be husband and wife, but never
got around to formalizing the relationship. Late in
life, Mike’s health deteriorated drastically, and
like many couples, he and Amy discussed worst-case scenarios.
Mike’s father had been kept on life support while
in a coma for months, and he was determined not to suffer
the same fate. Amy promised that his wishes would be
respected. When the time came, she passed his decision
on to the doctor. To her shock, she learned that common-law
spouses are not authorized to provide consent or instructions
for medical treatment for their partner in most provinces
(British Columbia, Ontario and Quebec are the exceptions).
Mike’s brother, Andrew, was finally tracked down,
but he was not prepared to allow the plug to be pulled
on his own brother. Amy was heartbroken, but powerless
to do the right thing herself.
Jennifer moved into her boyfriend Mark’s condo
in September. They got along well for a while, but like
many young couples, ran into some difficulties. After
a spat the following July, she moved back to her parents’
for a few weeks. They kissed and made up in August,
and resumed cohabiting. Mark was killed in a car accident
before Christmas. When Jennifer applied for his pension,
his children contested her claim. The grounds were that
Jennifer and Mark had not lived together long enough
to qualify as common-law spouses, and so the children
were entitled to the money.
If the relationship breaks down, even one of many years,
a common-law spouse in Canada has no right to share
in assets acquired by his or her spouse during the relationship.
The federal government and most provinces do allow
pension benefits to go to the surviving partner after
the death of a common-law spouse, but there can be problems.
Different jurisdictions have different definitions of
common-law spouse and different periods of cohabitation
before the relationship is legally recognized. As well,
unlike a married spouse, who can establish his or her
status easily with a marriage certificate, a common-law
spouse has no piece of paper to prove the relationship.
Affidavits and other evidence may be required, and there
may be family members with a financial incentive to
dispute the relationship.
Courting Trouble
Many people, regardless of marital status, would consider
these results to be unfair, even discriminatory. Some
common-law spouses have launched court challenges to
attack the legal status quo. In the recent decision
of Walsh vs. Bona, a Nova Scotian common-law couple
lived together for about 10 years before parting. The
common-law wife wanted a division of matrimonial property,
but the definition of “spouse” in the provincial
legislation did not apply to help her, as it would have
if she were married. She sued to have that definition
declared unconstitutional. The trial judge ruled that
there was no discrimination under the Canadian Charter
of Rights and Freedoms. When she appealed, the Nova
Scotia Court of Appeal overturned the trial judge’s
decision. To settle the issue once and for all, the
case went to the Supreme Court of Canada. Sadly for
her, the Supreme Court decided that married couples
have made a permanent life commitment to each other,
while unmarried couples have not. Accordingly, the rights
and duties of a married couple do not apply. To do otherwise,
the Court stated, would be “to intrude into the
most personal and intimate of life choices by imposing
a system of obligations on people who never consented
to such a system.”
Whether you agree with the Supreme Court’s decision
or not, that stands as the law of the land. The legal
result is that even if a provincial law discriminates
between the rights of married couples and common-law
spouses, the law is not unconstitutional. Of course,
the Court’s ruling does not prevent a province
from amending its legislation to provide similar protections
to spouses, whether married or not.
What can be done to protect you or a family member
if you are in a common-law relationship? Fortunately,
the legal tools are readily at hand. All that is required
are well thought out wills and a cohabitation agreement
to patch up the safety nets torn apart by the laws and
the courts.
Peter Lillico is a lawyer in Peterborough, Ont.,
specializing in estate planning. His Web site is www.lbkglaw.com
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