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Posts from the ‘Common Law Relationships’ Category

What Does it Mean to be “Living Together”, Exactly?

living together

What Does it Mean to be “Living Together”, Exactly?

A few weeks ago I considered a case  that addressed whether support payors should have any input on how their support payments are spent. In reflecting on that question, the court speculated on the support payor’s disgruntlement at seeing his former spouse spend support payments on “beer, bingo and boyfriends”.

This kind of scenario provides a good jumping-off point for a related issue: If the former spouses both agree that support will terminate if the recipient spouse “lives with” a new partner, when does that threshold get crossed, exactly?

Although there are many cases from Ontario that consider this, I noticed a good discussion in an older Newfoundland case called Cooper v. Cooper. There, the husband had agreed to pay support to his ex-wife, with whom he had a traditional marriage for 28 years. However, the now-divorced couple agreed that spousal support would end if the ex-wife decides to “remarry or reside with another man, as husband and wife.”

In 1993, about a year after the divorce, the wife started a relationship with another man, with whom she lived in Florida for the winter months of each year (and particularly so since she had been declared redundant at her work). About five years after that, the husband finally asked the court to terminate his support obligations to her, on the basis that his ex-wife had been “living with” another man within the wording of their agreement.

In order to determine the issue, the court gave detailed consideration to the relationship between the ex-wife and her boyfriend. In making this assessment, it considered a prior judgment in a case called Soper v. Soper where the court said:

I think it would be fair to say that to establish a common law relationship there must be some sort of a stable relationship which involves not only sexual activity but a commitment between the parties. It would normally necessitate living together under the same roof with shared household duties and responsibilities as well as financial support. I would also think that such a couple would present themselves to society as a couple who were living together as man and wife. All or none of these elements may be necessary depending upon the intent of the parties.

Here, the evidence pointed to something more casual and less full-fledged than a common law marriage:

Although they lived together in Florida periodically – where they participated in neighbourhood, community and social activities together – the ex-wife kept her own apartment. They did not share bank accounts or property ownership, preferring to keep their financial affairs separate. They did not share financial information with each other, either. The boyfriend paid for expenses, while he ex-wife paid for food costs and her own long distance calls. And while they did have a sexually-exclusive relationship, the ex-wife stressed that she was a free and independent woman.

In assessing this arrangement, the court kept in mind the observations in an earlier case called Deering v. Deering:

According to the evidence, Mr. Smith and Mrs. Deering keep constant company with each other but do not live together as man and wife. They do have sexual intercourse with each other and she sometimes will prepare his meals.

If there prevails what is generally known as a common law relationship or a domestic relationship, then it seems unfair and indeed improper that a person should be called upon to contribute to the support and maintenance of the former spouse who is a party to such a relationship.

There may, however, be only a social relationship which may or may not involve intimacies but which would not of itself preclude the spouse from claiming maintenance from his or her former spouse.

The relationship that prevails between Mr. Smith and Mrs. Deering falls somewhere between these two, closer to the former than the latter. There is a business relationship also because Mrs. Deering pays rent to Mr. Smith. They frequently share each other’s beds and bodies and dining table but fall short, albeit by little, of having an actual common law relationship.

Returning back to the facts of the present case, the court added:

I question whether one should automatically regard it as unfair for support to continue merely because the ex-wife ends up in a common law relationship, after a lengthy traditional marriage as in the present case, where the wife has probably been economically disadvantaged by her involvement in raising children.

The clause in the former spouses’ agreement governed; there was no husband-and-wife relationship between the ex-wife and boyfriend, so the threshold for ending support had not been met. The husband was obliged to continue his financial obligations (and his subsequent appeal of the ruling was dismissed).

For the full text of the decision, see:

Cooper v. Cooper (1998), 168 Nfld & PEIR 58; 42 RFL (4th) 317 (NL SCTD)

Cooper v. Cooper, 2001 CarswellNfld 17, 2001 NFCA 4, [2001] N.J. No. 19 (Nfld. C.A.)

Soper v. Soper (1985), 44 R.F.L. (2d) 308; 67 N.S.R. (2d) 49 (N.S.C.A.)

Deering v. Deering (1986), 60 Nfld. & P.E.I.R. 230 (Nfld. T.D.)

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

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


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

Quebec (Attorney General) v. A., 2013 SCC 5

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

Was 1000-Guest Religious Wedding a Valid “Marriage” in Ontario?


Was 1000-Guest Religious Wedding a Valid “Marriage” in Ontario?

The issue in this interesting case was whether a form of cultural/religious marriage in which the parties had participated in Ontario was valid, to the extent the parties were legally married and entitled to embark on the equalization process under provincial family law.

In Chhokar v. Bains, the couple went through a Sikh religious marriage, which was performed in 2008 in a Sikh temple located in Ontario. All the traditional steps were taken; over 500 people attended the ceremony and about 1,000 attended the reception. However, no marriage license was ever obtained, and the marriage was never registered under the Ontario Marriage Act as required by provincial law.

After the ceremony, the couple lived separately for a while; they then lived together common law but never obtained a marriage license. The man claimed that this was because the woman wanted to remain “single”, apparently wanted to be free to marry and sponsor her cousin in India as part of a fraudulent immigration scheme to Canada. The woman denied that, claiming to the contrary that it was actually the man who had someone else lined up in India to marry. Each party claimed that it was the other who had resisted or been unwilling to get a marriage license, once they had become aware of the requirement under Ontario law.

The couple separated in 2011.

Based on the assertion that there had been a legal and valid marriage in Ontario, and that she accordingly qualified as a “spouse” under the Family Law Act, the woman applied to the court for an order equalizing the net family property.

The court dismissed the woman’s application. Neither of the parties called family or friends for evidence to support their version of events, so the court had to determine credibility. While concluding that the evidence of both of them was “less than satisfactory”, overall the court believed the man. His version of events evidence was corroborated by some surreptitiously-recorded conversations which – while expressly frowned upon by the court – were nonetheless persuasive.

In short: the court found the religious marriage they participated in did not comply with the legal requirements of a marriage under Ontario law, and was not undertaken in “good faith”, i.e. with the woman having the intention to comply with that law. Given that she was the one bringing the equalization application, the woman’s intention was relevant and she had the burden of proving that she intended to enter into a legally-valid marriage with the man. However, the documentary evidence (such as her tax return, where she listed herself as “single”, and a life insurance application, on which she listed the man as “friend”) supported the idea that the woman herself did not think they were legally married.

As a result, and although the elaborate and expensive Sikh religious marriage that took place did amount to evidence that the couple intended to be married, it fell short of showing that they intended to comply with the Ontario legislation.

As such, the woman was disentitled from claiming equalization of the net family property. However, she was nonetheless entitled to $150 per month in short-term spousal support, taking into account the brevity of the marriage, the husband’s $50,000 income, and her own ability to earn about $20,000 per year as an aesthetician.

For the full text of the decision, see:

Chhokar v Bains, 2012 ONSC 6602 (CanLII)

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

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and

• the claim for spousal support is made within one year of couples’ separation.
The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

We examine:

1) What is spousal support? 

2) What is the legal basis for obtaining spousal support? 

3) What factors dictate the duration and amount of spousal support? 

4) How does the spouse’s behaviour affect spousal support entitlement? and  

5) What happens if there is a change in circumstances?

Granting a Canadian Divorce to a Foreign Same-Sex Couple – Are They Even “Married”?


Granting a Canadian Divorce to a Foreign Same-Sex Couple – Are They Even “Married”?

An interesting Ontario case decided last week untangles the question of whether – for the purposes of divorce – a same-sex union in another country can constitute a “marriage” in Canada.

The couple, two men named Wayne and Gerardo, met in 2009 and went through what is known as a “civil partnership” ceremony in the UK, in keeping with legislation devoted specifically to recognizing same-sex relationships in that country. (The term “marriage” in UK law is still specifically reserved for opposite-sex relationships).

They complied with all the UK procedural requirements, and exchanged rings.

When they decided to move to Canada (where Wayne was originally from), Gerardo obtained a UK national identity card which identified him as “spouse/partner”. Upon inquiring at Toronto City hall about the prospect of having a civil marriage ceremony here, they were told that as far as the Registrar was concerned it was unnecessary, since they were already in a UK civil partnership.

They separated in early 2011, and Wayne filed in Ontario for a divorce. He claimed equalization of net family property, and spousal support pursuant to the province’s Family Law Act.

However, Gerardo countered by claiming the parties were not actually married – i.e. that “civil partnerships” do not constitute “marriages” in the UK, much less in Canada. As such, he asserted that an Ontario court has no authority to grant a divorce or to grant equalization under the Ontario Family Law Act unless the parties are married spouses first.

Accordingly, and as a prerequisite to a divorce, Wayne applied to the court for a declaration that the union between him and Gerardo was a “marriage” for the purposes of Canadian family law.

The court observed that in Canada, “marriage” is defined by the Civil Marriage Act as “the lawful union of two persons to the exclusion of all others.” Wayne and Gerardo’s civil partnership met that criterion. Moreover, Canadian law was entitled to treat a foreign civil partnership as a “marriage” if it saw fit, and there was no need to force Wayne and Gerardo to have their civil partnership dissolved using the procedures established in the UK.

To resolve the question the court had to take into account the legislative and policy framework for marriage and civil unions in both Canada and elsewhere. In particular, the court recognized that the law is possessed with the flexibility necessary to meet the changing realities of Canadian society.

With that context in mind, the court declared that Wayne and Gerardo’s civil partnership could constitute of “marriage” under the Canada Civil Marriage Act. To hold otherwise, it said, would be to perpetuate discrimination and to “run contrary to the express values of Canadian society, expressed in both the case law, and the statute itself.”

For the full text of the decision, see:

Hincks v. Gallardo, 2013 CanLII 248 (ONSC)

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

Thinking of Sponsoring a Spouse to Come to Canada? Important Changes You Should Know


Thinking of Sponsoring a Spouse to Come to Canada? Important Changes You Should Know

The federal Minister of Immigration has recently introduced a series of important changes to the spousal sponsorship requirements and process. These changed are intended to strengthen the integrity of the Canadian immigration system, by clarifying the regulations relating to sponsorship and by deterring fraudulent “relationships of convenience” (by which two people marry in order for one of them to obtain permanent residence in Canada).

Here is a brief summary of what you need to know:

Background on Sponsorship

Any individual who wishes to sponsor a spouse, conjugal partner or common law partner to come to Canada as a permanent resident must apply pursuant to the Immigration and Refugee Protection Regulations (IRPR), which allows such sponsorship of individuals who are part of either the “family” class or “spouse or common law partner in Canada” class. Prior to the recent changes, the regulations merely required that the sponsoring party be ether a Permanent Resident or a Canadian Citizen.

Changes to Spousal Sponsorship Rules

The first change, effective March 2, 2012, affects only those spouses who have themselves been sponsored to be in Canada in the first place (as a spouse, common law partner, or conjugal partner). The amendments impose a new five-year sponsorship bar for such individuals: – in other words, a person who has been previously sponsored is prohibited from sponsoring a new spouse or partner for the first five years or his or her permanent residency. This measure is intended to prevent such individuals from divorcing their original sponsors and then getting married (and sponsoring) someone else to come to Canada.

Conditional Residency

The second change came into effect on October 25, 2012. It involves the introduction of a conditional residency requirement for certain spouses. In particular, those spouses, common law partners, and common law partners who have been in a relationship for two years or less must satisfy a two-year conditional permanent residency requirement, i.e. they must live with the sponsoring spouse in a conjugal relationship for a continuous period of at least two years after the day on which they became permanent residents.

Those who breach the residency condition may be declared inadmissible to Canada, and may be subject to removal. The condition is automatically removed after the two years has lapsed (unless there is an investigation by Citizenship and Immigration Canada into whether the conditions have been satisfied).

There are exemptions to these requirements in two cases: 1) where the couple has lived together for less than two years but have a child together; and 2) where the sponsored spouse can demonstrate that he or she has suffered neglect or abuse (which can be physical assault, forcible confinement, sexual assault, psychological threats or intimidation, and fraud or extortion).

Top Five Latin Terms in Family Law

Top Five Latin Terms in Family Law

In a family law decision I was reading recently, the judge had used a few Latin terms in the judgment, and I wondered whether the parties to the litigation fully understood what was going on in their own legal matter. It occurred to me that there were some Latin terms that were relatively common (at least in legal circles) that still might need some explanation.

1. In loco parentis. (“In the place of a parent”)

This phrase is used to refer to a person or entity assuming the normal parental responsibilities for a minor child. It is often used in situations where there is a transfer of legal guardianship, or to refer to schools or other institutions that act in the place of the parents on a day-to-day basis.

2. Lex loci. (“In the law of the place”)

The term refers to the law of that particular country, state, or locality where the matter under litigation took place. It usually arises in connection with legal disputes that span multiple jurisdictions, for example where children have been removed from Canada by one parent and the issue arises as to which jurisdiction’s laws govern the situation (an area of law called “conflict of laws”).

3. Non est factum. (“It is not my deed”)

This term is more commonly used in contract law, but it can be applied in the context of separation agreements that have been reached between spouses or common law partners. It refers to an assertion by one signatory to a contract that the agreement is invalid on the basis that he or she signed unintentionally and without fully understanding its implications.

4. Parens Patriae. (“Parent of the nation”)

This term refers to the power of the State to act as parent to a child, in situations where the legal parents are unable or unwilling to do so. For example, when children are removed from their parents’ care in order to be cared for under the auspices of the Children’s Aid Society, such a step is achieved and authorized through the exercise of the Ontario government’s parens patriae authority.

5. Res judicata. (“A matter judged”)

A matter that is res judicata is one that has been adjudicated to the point of conclusion, meaning no further appeals or legal actions by the involved parties is permitted. For example, if divorcing parties have brought their claims for equalization of net family property to one court, and have had the matter heard and adjudged, then they cannot afterwards go judge-shopping to a different court for a different or better outcome on that particular aspect of their separation. Once their issues have all been heard (and leaving aside those legal matters that are eligible for applications to vary), the matter becomes res judicata.

Honoury Mention

Inter vivos. (“Between the living”)

This term is used to refer to a gift or other non-sale transfer between living parties. For example,a gift by living parents to their children is called a gift inter vivos; this is distinct from a transfer made by Will, which takes effect upon the testator’s death.

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



Top Five Questions About the Children of Common-Law Relationships

Top Five Questions About the Children of Common-Law Relationships

Common-law relationships are very common in today’s society.  Nonetheless, the legal issues surrounding support obligations or adoption by a non-parent are often not well understood.   Here are the top five points to note:

1) Is a common-law spouse obliged to pay child support?

As with parents who are formally married, the common-law parents of a child are both equally responsible for support.   This obligation lasts until the child reaches the age of majority (age 18 in Ontario), but can extend beyond that point if the child remains dependent because of disability, illness, or because he or she is pursuing post-secondary education.

2) Who pays support for a step-child?

A person who enters into a common-law relationship with someone who already has children may have to support a step-child.  It depends on whether in light of all the circumstances he or she qualifies as a “parent” under the Ontario Family Law Act, which definition includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”

3) What if you want to adopt your spouse’s child?

A person who wants to adopt the child of a common-law spouse can only do so if the child’s other biological parent is prepared to give up his or her rights.  Once such an adoption takes place, the adoptive parent assumes all of the responsibilities of the biological parent in connection with the child, including the obligation to pay child support.

4) Who gets custody of a child if common-law partners break up?

Ideally, if common-law spouses decide to separate, they can amicably decide which of them should have primary custody of the child, and how access arrangements are going to be structured.   Any minor disputes about the scope or range of decision-making, or the nature, extent and scheduling of access, can be worked out with the assistance of a family law mediator.

However, if the common-law partners/parents cannot agree, then a judge may have to make a binding decision that will settle any outstanding matters.   As with children of parents who are formally married to each other, the governing principle to be applied to these decisions is always the best interests of the child.

5) Can a common-law couple adopt a child?

In Ontario, common-law spouses have the same rights as married spouses to adopt a child; they are also subject to the exact same requirements.  These include the requirement that they have both reached the age of 18, that they provide certain documents (e.g. medical reports, police clearance reports, letters of reference, financial statements, and similar) and that they participate in both a home study process and an education program.   The home study may be completed either privately, or by a Children’s Aid social worker.

For more information about the obligations that may arise in connection with children of parents in a common law relationship, contact us as

Top Five Points on the Law Relating to Children Born Outside of Marriage

Top Five Points on the Law Relating to Children Born Outside of Marriage

In Canada, it is no secret that common-law relationships abound.   Moreover, even those couples who have children together do not always take the formal step of getting married in a civil or church ceremony.   This gives rise to questions about whether the law treats such children born “out of wedlock” (as they used to say) in the same manner as the children of married parents.  

Here are the top five legal points about the law relating to children born to parents who have not legally tied the knot:

1) Legal status.

Whether the parents are married or not – and whether the child is being raised by a single mother, by parties in a common-law relationship, by same-sex parents, or some other situation altogether – at law there is no difference in the status or rights of such a child as compared to a child born to married parents.

2) Registration of birth.

First of all, Ontario’s Vital Statistics Act requires all “births” – which are defined simply as “the complete expulsion or extraction from its mother” which results in a live birth – to be registered within 30 days.   This registration is required to be effected by “the mother and father, or either of them”.  There is no stipulation that the parents have any particular marital status when the registration takes place.

Next, the surname that will be given to the child at the point of registration is subject to various rules.  Specifically, if both parents are certifying the child’s birth, they may agree to give the child either of the parents’ surname, or else both names hyphenated or combined. If the parents do not agree, however, then the child is given the parents’ surname (if it is the same), or a surname that is hyphenated or combined in alphabetical order.  There are additional rules to cover various other permutations.

Finally, in the event that an application is later made to change the child’s name from the one that was given at the time of birth, additional legislative requirements must be adhered to by the person making the application.

3) Establishing parentage

The Ontario Children’s Law Reform Act provides that “any person having an interest” may apply to the court for a declaration that they are the mother or the father of the child (as the case may be).   Parentage is established by assessing evidence on the “balance of probabilities”; although in the case of establishing paternity there are certain presumptions that apply.  

For example, and unless the contrary is proven, a man is recognized as a child’s father where he is married to the mother at the time of the child’s birth, or else he marries the mother after birth and acknowledges that he is the natural father.  The Act sets out several other scenarios which give rise to a rebuttable presumption of paternity.

4) Custody and access.

In situations where the parents of a child are not married, there is no automatic presumption that the mother will get custody of that child.

Instead, the Children’s Law Reform Act specifically provides that the father and the mother of the child are equally entitled to custody.  As a practical matter, this means that not only are the parents equally given the relevant rights and responsibilities, but they are also obliged to exercise those rights and responsibilities in the child’s best interests.

It should be noted that in cases where the parents of the child live separate and apart but the child lives with one of them with the other’s consent, the other parent’s right to exercise custody is suspended until a separation agreement or a court order provides otherwise.  However, the non-custodial parent still retains an entitlement to have access to the child; this includes visitation rights, as well as the right to make inquiries / be given information as to the health, education and welfare of the child.

5) Child support

Simply put, the obligation of a parent to support a child is wholly unrelated to the question of whether the parents are legal married to each other.  Under the Ontario Family Law Act, every parent has an obligation to provide support for his or her minor child, to the extent that the parent is capable of doing so.  The obligation to provide support ends only if the child ceases being a minor, or if the child gets married.

For the full copies of the relevant legislation, see:

Children’s Law Reform Act, R.S.O. 1990, c. C.12

Family Law Act, R.S.O. 1990, c. F.3

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



Common-Law Spouses and Estate Planning

Common-Law Spouses and Estate Planning

More and more these days, the distinction is becoming increasingly blurred – both societally, and legally – between partners who have formally married each other and those who are living in common-law relationships. This is true in both in family law legislation (which in most cases confers similar benefits on parties to both kinds of relationship), and in Canadian court cases in which judges are asked to examine whether the purported distinction still holds valid in our progressive society.

However, there is at least one legal area in which the distinction remains firmly entrenched in Ontario: Estate law.

More particularly the current law in Ontario dictates that, unlike the situation between legally-married spouses, a surviving common-law spouse does not automatically have rights to a partner’s estate upon that person’s death. Instead (and absent careful Estate-planning measures that make the entitlement clear), that surviving common-law spouse may have to commence a legal action against the deceased partner’s estate.

This litigation will normally involve a claim for “dependant support” under the Succession Law Reform Act, which allows any “dependant” of the deceased to claim support in cases where adequate provision for support has not been made. Common-law spouses qualify as “dependants” for these purposes, and the court has broad power to grant various forms of relief, including the transfer or property or an order allowing the surviving spouse to continue using or occupying property.

In addition to these measures, the surviving common law spouse may also have a right to argue that he or she is entitled to equitable (as opposed to legal) ownership of property. These rights might arise as a result of the principles of unjust enrichment and can include recourse to the concepts of resulting or constructive trusts, for example.

But irrespective of which of these courses of action the surviving spouse might have to be pursued, they can be costly. Moreover, they usually involve unneeded contention and aggravation, particularly at such an emotional time.

This situation relating to Estates is consistent with other Family Law areas as well: As I reported a few months ago in “The Supreme Court of Canada decides that Common-Law Couples who split up deserve their fair share”, ,the Supreme Court of Canada has recently clarified the law relating to common law relationships and the concept of unjust enrichment, in its single judgment in the cases of Kerr v. Baranow, and Vanasse v. Seguin. Although those were not estate planning cases, the decision confirms the fact that in Canada, common law spouses are still treated differently from a legal standpoint than “formally” married ones, and – when there is no legislation to govern the situation – may have to rely on common-law principles to obtain a fair result.

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