Category: Common Law Spouses
A life-interest allows a testator to gift the ultimate benefit of real property, while providing in the interim for a loved one during their lifetime. For example, a woman may want to allow her common law spouse to live in her home for his lifetime but ultimately want her children from a previous relationship to receive it. In order to accomplish this, the woman would give her common law spouse a life-interest in the house; after his death, the house would belong to her children, the ultimate beneficiaries. The person with the life-interest is called the life-tenant; the ultimate beneficiaries are known as the remaindermen.
While this approach allows a testator some control of their property after death, it can raise disputes regarding who is responsible for paying certain expenses associated with the real property during the lifetime of the life-tenant.
The general rule – as noted in Widdifield on Executors and Trustees, 6th ed, and demonstrated in Re Goodfriend Estate,  OJ No 4291, 4 ETR (3d) 10 at
para 22 – is that “ordinary outgoings of a recurring nature” are the responsibility of the life-tenant. But any expenses that are not ordinary outgoings (i.e. capital expenses) are to be borne by the real estate itself and therefore at the expense of the remaindermen. Both rules are subject to contrary intentions expressed in the testator’s will.
Ordinary outgoings include: heat and hydro, taxes and interest on mortgage debt (but not the principal). In the above example, the common law spouse would be responsible for these expenses. Capital expenses, which are to be borne by the remaindermen, include the following: upkeep/repairs (such as the repair of a roof), expenses of legal proceedings (unless legal proceedings are for the life-tenant’s sole benefit), trustee’s costs and expenses, appointment of new trustees and investment advice.
However, as mentioned above, a testator can express a contrary intention. A testator may direct that ordinary outgoings of a recurring nature be paid out of the property or that capital expenses be paid by the life-tenant. A court will generally enforce the intentions of the testator if those intentions are clear or can be inferred from a reading of the will as a whole.
When a testator considers leaving a life-interest in a piece of real property, it is important to address the issue of payment of various expenses associated with the property in order to avoid conflicts between the life-tenant and the remaindermen.
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In Canada, polygamy is an indictable offence under the Criminal Code of Canada. Under section 293(1):
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”
According to this Canadian Department of Justice research report, polygamy can refer to “the simultaneous union of either a husband or wife to multiple spouses. As a general term, polygamy therefore includes the practices of bigamy, polyandry, and polygyny.”
Notwithstanding the prohibition against polygamy in Canada, family law and succession legislation in Ontario recognizes polygamous spouses under certain circumstances. For instance, the Succession Law Reform Act and the Family Law Act both provide at section 1(2):
“In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.”
In estate matters, this means that as long as the union originated in a jurisdiction that legally recognizes polygamous marriage, multiple spouses can be found to simultaneously share in the preferential share under intestacy or be able to claim as a spouse under the provisions for dependant’s relief.
With respect to the preferential share, this is not the first or last time that the definition of spouse was broadened to provide access to other groups of spouses. In 1977, access was granted to widows with children. The inclusion of polygamous spouses (where the union originated in a jurisdiction that permits polygamy) was introduced in 1990, and 2003 saw the recognition of same-sex couples.
On a similar note, there are cases where the deceased is found to have been legally married to one spouse while carrying on a common law relationship with another. Or, in other scenarios, the deceased may have been engaged in two simultaneous common law relationships immediately prior to death. These situations raise many complex issues, the latter of which can be read about in more detail in our previous blog post here.
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Yesterday was the kick-off of the 1st annual Family Dispute Resolution Institute of Ontario (“FDRIO“) Conference, the purpose of which is to bring together family dispute resolution professionals, clients, and legislators to share their knowledge, skills and experience. The FDRIO is an organization that deals with family disputes, during all stages of life, which includes estate and elder care issues.
As an example of the overlap between family law and estate proceedings, the Family Law Rules Form 13.1: Financial Statement (Property and Support Claims) is often used as affidavit evidence of a support claimant’s assets, means, and needs within a claim for dependants relief pursuant to Part V of the Succession Law Reform Act.
As of May 2, 2015, the Family Law Rules were amended to include a category for income from a registered retirement income fund or annuity and a new Form 13A: Certificate of Financial Disclosure. The new Form 13A requires the claimant to list all documentation in support of a party’s support and/or property claims. This list is required to be served on all parties at the commencement of proceedings and to be updated throughout the litigation.
While there is no requirement to enclose a similar list of supporting documentation within a claim for dependants relief, this type of disclosure may streamline the productions process and facilitate settlement discussions by indicating the documents in the claimant’s possession and his/her readiness to substantiate their claim for dependants relief. The new Form 13A is also a helpful tool to guide clients with the type of documents that they should be prepared to disclose throughout litigation.
Click here for links to the Ontario Family Law Rules Forms, and, for those who are interested, click here for information in respect of the new Ontario Family Law Rules which came into force and effect this May.
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In wills variation proceedings in British Columbia, the date for determining whether a testator made adequate provision for a claimant is the date of death. However, in Eckford v. Vanderwood the British Columbia Court of Appeal considered the situation where the claimant’s circumstances changed after death, and whether that should impact upon the date to determine sufficiency of support.
In this case, the testator (age 57) and claimant (age 56) were common law spouses. They had a home owned as joint tenants, and on its sale after the testator’s death the claimant received almost $310,000.00. The deceased had other assets with a gross value of about $400,000.00. However, the claimant was not a beneficiary in the testator’s Will (made prior to he and the claimant moving in together).
After the testator’s death, the claimant left her secretarial job due to a lung infection. Various subsequent ailments left her disabled and it seemed unlikely that she would be able to return to work. The claimant pursued a claim under the former Will Variation Act (in Ontario such a claim would be brought under part V of the Succession Law Reform Act (SLRA)).
The judge found that adequate provision was made for the claimant, and the medical problems developed post-death were not reasonably foreseeable to the testator. The judge also concluded that he could not take into account the claimant’s current medical situation. The claimant appealed.
The appellate court agreed with the trial judge. It cited the two-stage process of first determining whether adequate provision was made, and, if adequate provision was not made, then at stage two the court would look at what provision would be just and equitable in the circumstances – the claimant’s current circumstances could be reviewed as part of that process ( the SLRA is similar in effect ).
It was concluded that for stage one the date for determining adequate provision is the date of death, as that is the last opportunity one has to make a will. The circumstances existing at that date are relevant. Also relevant are circumstances that are reasonably foreseeable to the testator at that time, which is a question of fact to be determined in each case. In this case, such a rapid decline in health shortly after the testator’s death was not reasonably foreseeable. Accordingly, the claimant did not pass the first stage of the test.
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The Ontario Court of Appeal released their decision in Carrigan v. Carrigan Estate (“Carrigan”) on October 31, 2012. Carrigan drastically changed our understanding of the priority scheme for the payment of pre-retirement death benefits to surviving spouses under the Ontario Pension Benefits Act (“PBA”). Carrigan was an important decision which dealt with the issue of who, as between a common law and a legally married spouse, is the defined “spouse” that is entitled to a pension plan member’s pre-retirement death benefit and we have blogged about this topic extensively in the past, here, here and here.
Carrigan arose from an all too common situation in which the Deceased was survived by a common law spouse and a married spouse from whom he was living separate and apart. The PBA’s “spousal” priority over and above a pension plan member’s designated beneficiary(s) was found to be inapplicable under such circumstances based on a very strict interpretation of the legislation by the Court of Appeal. In other words, according to Carrigan, neither the common law spouse nor the married spouse had a spousal priority to the Deceased’s pre-retirement death benefit. The married spouse in Carrigan ultimately received the Deceased’s pre-retirement death benefit as the Deceased’s designated beneficiary.
As the result of the Court of Appeal’s strict interpretation of the PBA, Bill 14, Building Opportunity and Securing Our Future Act (Budget Measures), 2014 was passed on July 24, 2014 effectively amending the PBA and the implications of Carrigan. Bill 14 amends section 48 of the PBA to provide that a common law spouse who is living with a pension plan member on the date of death is entitled to his/her pre-retirement death benefit over and above a married spouse whom he/she was living separate and apart from and the member’s designated beneficiary(s), if the member dies on or after the date Bill 14 receives Royal Assent. Royal Assent was given the same day so this is in fact the new state of the law with regard to pre-retirement death benefits under the PBA.
Congratulations to the OBA’s Carrigan working group and to all those involved in this legislative amendment for their superb advocacy and hard work.
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Cohabitation has become a popular trend for Canadian couples as more and more couples are deciding to live together before getting married or in place of marriage. For the most part, Canadians are aware of this increasing trend and throughout Canada laws are changing to adapt to this reality. However, as Maclean’s discusses, there is a type of relationship that is gaining popularity, although many Canadians may have never heard of it.
This relationship trend is called “Living Apart Together”, or “LAT” relationships. Maclean’s has published an article entitled “Living Apart, Together”, where this growing trend is discussed as well as the reasons why many couples are “saying no to cohabitation and marriage”.
According to Statistics Canada, approximately 1.9 million Canadians aged 20 and over were in a LAT arrangement in 2011. LAT relationships are especially growing in one category, the 60 plus age bracket where it jumped from 1.8 percent to 2.3 percent from 2001-2011.
Sociology professors Karen Kobayashi of the University of Victoria and Laura Funk of the University of Manitoba conducted a study of 28 LAT couples in Canada. The average age of participants was 59 and many were previously married and had children. The couples involved in this study expressed their reasons for staying in LAT relationships. Many of the couples stated that they viewed cohabitation as unnecessary and “did not want to ruin what they have”. Further, many couples discussed that by living apart they were protecting their independence.
Two-thirds of study participants had children from a previous relationship and expressed their concerns with being involved in a new common-law or marriage-like relationship and possible complications for their children. Many of the couples in the study expressed that they wanted to “spare their children future legal entanglements, and many of them said they were avoiding becoming common-law”.
As the Maclean’s article points out, cohabitation may bring up issues after a person passes away, including possible claims for support.
Under Part V of the Succession Law Reform Act (“SLRA”), if one is considered a “dependant” under the Act, they may make a claim for Dependants Relief. Under the SLRA, a “dependant” means,
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
Section 57 of the SLRA defines “spouse” as: “either of two persons who, (a) were married to each other by a marriage that was terminated or declared a nullity, or (b) are not married to each other and have cohabited, (i) continuously for a period of not less than three years, or, (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.”
Therefore, if one qualifies as a “dependant” under the Act they may make a claim for Dependants Relief. However, it is important to remember that living together does not automatically grant a claim for Dependants Relief, as the deceased must have been providing support immediately before death.
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In my blog earlier this week I discussed how in Ontario the Succession Law Reform Act (“SLRA”) extends to common-law spouses the ability to seek dependant’s support. As stated in my blog, the definition of spouse in Part V of the SLRA includes two people who are not married to each other but who have “cohabited continuously for a period of not less than three years”.
Looking to this definition, the obvious next question is just what does it mean to “cohabit”? In Part V of the SLRA, to “cohabit” is defined as “to live together in a conjugal relationship”.
A simple reading of this provision leads you to one conclusion. You must live together to be considered common-law spouses. But is this necessarily the case? There are multiple varieties of relationships today. If two people do not live together, but otherwise present themselves to the world as spouses, does this preclude them from ever being defined as a “spouse” within the SLRA?
In Molodowich v. Penttinen,  O.J. No. 1904, the court provided for seven broad factors to be considered when determining whether a couple “lives together in a conjugal relationship”. The test employed in Molodowich was later confirmed by the SCC in M. v. H. As made clear in Molodowich, so long as a couple meets enough of the criteria listed, they are to be considered “living together in a conjugal relationship”, and thus may qualify as “spouses”.
This more flexible approach is perhaps best phrased by the Ontario Court of Appeal in Stephen v. Stawecki, where at paragraph 4 they provide:
“The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible… We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that specific arrangements made for shelter are probably treated as only one of several factors in assessing whether the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.”
Looking to the language contained in Stephen v. Stawecki, as well as the factors delineated in Molodowich, it is arguable that common-law spouses need not live under the same roof to be considered “spouses” within Part V of the SLRA. So long as they meet enough of the criteria listed in Molodowich, they may be considered living together in a conjugal relationship.
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In a story that made headlines over the weekend, the Supreme Court of Canada ruled last week that common-law spouses in Quebec are not entitled to the same rights regarding support as their married counterparts.
The decision has led to much discussion in the media regarding what rights common-law spouses have, and as was made clear in one news report I saw, it appeared that many common-law spouses took it for granted that they would be afforded the same rights by the court as their married counterparts.
The ruling was not without its dissenters, as Justice Abella, in disagreeing with the majority and arguing that the current scheme was unconstitutional, states:
“Since many spouses in de facto couples exhibit the same functional characteristics as those in formal unions, with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusion from similar protections perpetuates historic disadvantages against them based on their marital status”.
In Ontario, while common-law spouses do not universally enjoy the same rights as their married counterparts (see our blog on inheritance rights of unmarried couples), under certain circumstances the Ontario legislature has advanced to common-law spouses the same rights as those who are married.
Within the Succession Law Reform Act, in identifying those who are entitled to apply to the court for dependant’s relief, section 57 defines a “spouse” as including two people who:
“are not married to each other and have cohabitated,
(i) continuously for a period for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.”
Common law spouses do not universally enjoy the same rights as their married counterparts. While statutes such as the Succession Law Reform Act have advanced to common-law spouses some statutory protection, this protection is not universal.
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At a seminar sponsored by Hull & Hull LLP, the “Breakfast Series”, Ian Hull discussed the impact of Kerr v. Baranow in Estates law. The Supreme Court’s decision establishes the framework for how the courts apply the principles of equity to property claims by unmarried spouses. Unmarried spouses can turn to Joint Family Ventures (“JFV”) as a remedy to argue that they are entitled to specific property.
The decision was applied in Hillier Estate v. McLean. In this case, the deceased’s daughter brought an action to have the deceased’s former common law wife, Ms. McLean, removed from the house owned by the deceased. The deceased and Ms. McLean separated several times during their relationship. At the time of the deceased’s death, they were separated and had entered into a Separation Agreement.
The court found the existence of a JVF based on the following facts:
1. The deceased and Ms. McLean had only one bank account and it was in the deceased’s name.
2. Ms. McLean had been on social assistance in the early stages of the relationship.
3. Living with the deceased had allowed Ms. McLean to maintain her desired lifestyle in her desired community without the need for social assistance.
4. Ms. McLean’s limited contributions to the house represented some benefit to the deceased and a corresponding deprivation to her.
5. Ms. McLean and the deceased had planned to build the house together with the intention that they would live in it as a family.
Upon finding that a JFV existed, the Court found that Ms. McLean was entitled to a greater portion of the deceased’s property than the Separation Agreement allowed. However, as she had not worked to contribute to the family and as she had not contributed equally to the acquisition of the house, the Court found that Ms. McLean was only entitled to 10% of its equity.
In last week’s blog, found here, I talked about interpretation issues surrounding section 57 of the Succession Law Reform Act ("SLRA"). Fortunately, the SLRA provides the definition of ‘spouse’ and ‘cohabitated’. According to the SLRA, ‘cohabitated’ is defined as, “…to live together in a conjugal relationship, whether within or outside marriage” [emphasis added]. As the SLRA fails to define what it means to live in a conjugal relationship, it was necessary to turn to the common law for our answers.
The common law has also provided interpretive assistance in defining ‘to live together’. Specifically, the courts have addressed whether a couple can still live together but not under the same roof.
The leading case to address whether ‘cohabitation’ requires two people living under the same roof is Stephen v. Stawecki, a 2006 case of the Ontario Court of Appeal. In Stawecki, the court had to deal with a couple which began their relationship in March 1999. By December 1999, even though they maintained separate residences, the couple spent most nights together, and lived their lives together for the most part as a couple. In May 2003 one of the parties died, and the other party subsequently applied for dependant’s support. In the course of the application, the issue of whether the couple were “spouses” was raised, for although the couple moved in together in April 2001, in order to be cohabitating for the required three years the couple would have had to move in together before May 6, 2000. The appellant argued that as the couple did not live under the same roof for three years, they could not meet the definition of “spouse” within the SLRA. The Court of Appeal disagreed.
In determining if the couple lived in a spousal relationship, the Court looked to the factors from Molodowich v. Penttinen, which I listed in my previous blog. Upon reviewing the facts in the case, the Court of Appeal stated at paragraph 3, “[t]he necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later. Their relationship was an exclusive one, neither party being unfaithful. They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple, and were treated as such by their friends, family, and neighbours.”
The court went on to state at paragraph 4, “[t]he case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. in this area. We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship”.
This reasoning was later supported in the 2008 Court of Queen’s Bench of Manitoba decision of Bullied v. Kallen, where at paragraph 7, Menzies J., states “[a]lthough sharing a common habitual residence is a factor the court will consider, whether or not the parties share a common residence is not determinative”.