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Should Common-Law Couples Be Equivalent to Married Couples? One Step Closer… One Step Back

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Should Common-Law Couples Be Equivalent to Married Couples? One Step Closer… One Step Back

In Ontario – and with some notable exceptions – common-law spouses have the same rights as those couples who are in a traditional marriage, and for legal purposes have many (though not all) of the same obligations towards each other. However, in a recent Ontario criminal case called R. v. Hall the court examined whether there should be different treatment applied to common-law spouses in connection with testifying against their partners in certain criminal matters.

As background, it must be noted that under the Criminal Evidence Act, the ability of married spouses to testify against each other in certain criminal matters is specifically curtailed. In law, the question is one of “competency” (meaning whether a person can lawfully be called to give evidence) and “compellability” (meaning whether a person may lawfully be forced to attend and testify, usually by way of subpoena). The Criminal Evidence Act therefore sets out certain rules relating to both competency and compellability that pertain to various prescribed scenarios. In short, in some scenarios married spouses are merely competent to testify; in others they are both competent AND compellable. And in other defined (and narrow) situations, spouses are entirely exempted from having to testify.

However, no such exemption applies to common-law spouses (defined by federal legislation as one who is “cohabiting with the individual in a conjugal relationship having so cohabited for a period of at least one year or having a child together, or entering into a cohabitation agreement”). The question in R. v. Hall, was whether they should and whether such an exemption should be “read in” to the Act.

The facts involved a man who had been charged with murder. Certain conversations between him and his common-law partner had been intercepted by police, and she later described for law enforcement authorities some of the many illicit activities in which the accused man had allegedly been involved. Since under the Act the man’s common-law partner was not subject to the exemption that was afforded to married spouses, the question arose as to whether the scenario gave rise to a fundamental unfairness.

The court considered various constitutional principles, and found that the protections for spouses found in the Canada Evidence Act should indeed be extended to common-law spouses, as this would harmonize the law in this area with the other legislation that essentially abolished the distinction between the two types of union.

So why is this case interesting from a Family Law perspective? From a theoretical / policy-based viewpoint, it perhaps stands in stark contrast to a decision of the Supreme Court of Canada a few weeks ago which ruled that under Quebec Family Law, it is not unconstitutional for common-law spouses to be given different rights from married couples in connection with certain specific rights arising from support upon separation. I will comment on that decision – called Quebec (Attorney General) v. A. – in a future Blog post.

For the full text of the decisions, see:

R. v. Hall, 2013 ONSC 834  http://canlii.ca/t/fw1gs

Quebec (Attorney General) v. A., 2013 SCC 5  http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12825/index.do

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/team/russell-alexander/