Equitable Relief for Common-Law Spouses

November 3, 2011 Hull & Hull LLP Estate & Trust Tags: , , , 0 Comments

Equitable remedies are pushing the boundaries of just what kind of claims may be made against an estate. The most apparent beneficiary of this willingness of the Courts to expand the scope of such relief would appear to be common law spouses (see the recent decision of the Supreme Court of Canada in Kerr v. Baranow and our recent blog on the case).

In the October 2011 issue of Canadian Lawyer there is a good article on this whole issue entitled "Common Law Couples – til death do they part."  The author gives, in part, a summary of some of the legislation in other provinces as it has evolved to provide for common law spouses:

  • In Alberta, there is the Adult Interdependent Relationships Act and other legislation that "provide surviving spouses and common law partners the same rights to claim support from the estate and share in the deceased estate on intestacy [with the exception of the Dower Act]." 
  • In Manitoba, "major legislative amendments were proclaimed in 2004 such to create The Common-Law Partners’ Property and Related Amendments Act…Now in Manitoba, a common law partner is able to claim a share of a person’s estate if they’ve died without a will."
  • In Saskatchewan, "the Wills Act, 1996, The Administration of Estates Act, The Intestate Succession Act, 1996, The Dependants’ Relief Act, 1996, and The Family Property Act all treat married and common law couples who have cohabited for not less than two years the same,” says Maria Markatos, Crown counsel with the Ministry of Justice’s Public Law Division in Regina.

David M. Smith – Click here for more information on David Smith

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