The Rights of Common Law Spouses under the Charter
A milestone in Canada society recently passed: the Canadian Charter of Rights and Freedoms (the “Charter”) turned twenty-five.
The April edition of Canadian Lawyer featured an article in which the Charter was acclaimed as the single most important piece of legislation to the practice of law. Certainly, the Charter and the principles it enumerates has had a tremendous impact on all areas of Canadian law.
An area of estates law in which the Charter may have an impact in the future is in regard to statutory distinctions between common law and married spouses. In particular, the statutes that apply when individuals die intestate.
In Ontario, the Succession Law Reform Act provides that where a person dies intestate and is survived by a spouse, the surviving spouse is absolutely entitled to the deceased’s spouse’s property.* This is not the case for unmarried, common law spouses, who are treated no differently than a stranger to the deceased when it comes to the distribution of the deceased’s estate.
Also, under the Family Law Act, a surviving spouse may elect to receive either their entitlement under the deceased spouse’s Will or a share of the deceased’s net family property under an equalization (the same entitlement they would receive in an equalization under a divorce proceeding). The election is not available to common law spouses.
Arguably, the statutory distinction between common law and married spouses, as outlined above, may offend the equality guarantees under section 15 of the Charter. Although now that same-sex partners have the right to marry, there may not be as much enthusiasm over this issue.
There are also many claims available to a common law spouse against the estate of a deceased partner, including claims for support and trust-based claims to the assets of the deceased.
* Provided the deceased was not survived by children, in which case the spouse receives the first $200,000.00 of the deceased’s estate and shares in the remainder with the surviving children.