Tag: Common Law Spouses
We sometimes hear about an elderly person marrying a much younger person. What we often do not consider, however, is the possibility that such a marriage is entered into by a “predatory” spouse in order to take advantage of an elderly victim with the ultimate goal of assuming control of his or her finances.
The “predator” is often a caregiver or a family friend or neighbour. In most cases, it is a person who uses a position of trust to cause an elderly victim to change a Will, a power of attorney, an insurance policy designation or other documents. It is also not uncommon for inter vivos transfers to be made while the senior is alive.
According to Ontario law, the act of marriage grants the new spouse certain property rights, specifically with respect to the matrimonial home and spousal support. The most significant effect of a marriage, however, is the fact that the Succession Law Reform Act, revokes any Will executed prior to the marriage. To make matters worse, predatory marriages often occur in private such that the senior’s family members are not aware that he or she has married.
The evidentiary burden imposed upon the elderly victim’s adult family members to prove that a marriage should be declared void as it is a marriage of a “predatory” nature is significant.
Why is it so tough to show that a marriage is void?
Capacity is a fluid concept. It means that a person could have capacity for one task and no capacity for another, as capacity is time and situation specific. Capacity to enter into a marriage, is the lowest threshold of capacity. As such, a person can be entirely capable to enter into a marriage but may be incapable of managing his or her own financial affairs.
In addition, a person likely does not just lose capacity in a day; it is a gradual process such that there is a “grey zone” between having capacity and having no capacity at all. It is in that “grey zone” that a predator will take advantage because a person may start forgetting things but is otherwise capable for all intents and purposes.
Because of that, many are of the opinion that Ontario laws make seniors an easy target for “predatory marriages”. Will there be a change in the law coming our way, in light of the growing phenomenon of such marriages? Only time will tell.
For more information regarding this growing concern and the manner in which this issue has been treated by the courts, please see a paper by Kimberly Whaley of WEL Partners on Predatory Marriages.
Thanks for reading.
This week on Hull on Estates, Ian M. Hull and Stuart Clark discuss the recent case of Stajduhar v. Wolfe, 2017 ONSC 4954, and whether two individuals need to live together to be considered spouses within the confines of Part V of the Succession Law Reform Act.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
Subsection 14(a) of the Family Law Act provides that property held by spouses in joint accounts shall be intended, in the absence of proof to the contrary, to be owned jointly. The presumption may be rebutted by the spouse who seeks to have such monies excluded from net family property (Belgiorgio v. Belgiorgio, 2000 CanLII 22733 (ON SC)).
In LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), the court held that the husband failed to rebut the presumption of resulting trust in respect of funds in a joint account that had “traditionally been used to carry out family decisions for funding special projects”, such as renovations.
In Belgiorgio, the court held that a joint bank account in which the husband deposited his inheritance was used for household expenses and purchases, and was commingled with household income. The court found that the inheritance lost its excluded character when it was placed in a joint bank account; it was his intention at the time he deposited the funds that was relevant.
In the recent Ontario Superior Court of Justice case of McLean v. Dahl, a husband sought a declaration that he was the sole owner of proceeds in a joint bank account in the amount of $94,565 at the date of separation.
The Court considered the following facts in arriving at a determination that the presumption of joint ownership was not rebutted:
- Both parties used the account as they saw fit; however, it was their practice to consult one another if major purchases were to be made;
- When the parties decided to grant a sizeable loan to friends, the funds came from the joint account. When the funds were repaid to the wife alone, she returned them to the joint bank account;
- When the parties decided to work on their marriage, they agreed to put these funds into a joint account on the condition that both their signatures were required to make a withdrawal;
- Mr. McLean intentionally transferred solely-held funds to the parties’ joint names;
- the spouses discussed major transactions using these funds;
- the parties shared the tax liability for income on these funds.
In summary, the Court observed that “…when the parties agreed to work on their marriage, after Mr. McLean closed the first joint account, they opened a second joint account into which each deposited monies in his or her control. This was the second time that Mr. McLean intentionally placed funds in Ms. Dahl’s control. It is obvious from his pattern of conduct that he intended her to have access to funds in joint accounts.”
Accordingly, the Court found that, “from the time that Mr. McLean added Ms. Dahl’s name to the account, she became a half-owner, and the parties were entitled to one-half the funds in the parties’ joint account in the amount of $47,282 each.”
Thanks for reading,
David Morgan Smith
Other blogs that may be of interest:
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.
Thank you for reading!
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.
Thank you for reading.
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.
Thank you for reading.
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”.
Although such a commonly used phrase in today’s society, the type of relationship that amounts to a spousal relationship according to the law is an area that is often litigated over in Court.
Section 57 of the Succession Law Reform Act (“SLRA”) defines spouse as: “a spouse as defined in subsection 1(1) [of the SLRA] and in addition includes 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.”
After reading the definition of spouse, a logical question that arises is the meaning of “cohabitated”. Section 57 of the SLRA accounts for this by defining “cohabit” as, “…to live together in a conjugal relationship, whether within or outside marriage”. Unfortunately, the SLRA offers no further definition of what it means to live in a conjugal relationship. Therefore, attention must turn to the common law.
The case of Molodowich v. Penttinen 1980 CanLII 1537 (ON SC), a decision by District Court Judge S.R. Kurisko out of Thunder Bay,is the leading decision when it comes to defining, “…to live together in a conjugal relationship”. Molodowich defined seven broad factors to consider in assessing whether two persons have lived together in a conjugal relationship. These factors include:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
2. Sexual and Personal Behaviour
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
3. Services (What was the conduct and habit of the parties in relation to)
(a) Preparation of meals;
(b) Washing and mending clothes;
(d) Household maintenance; and
(e) Any other domestic services.
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
(a) What was the attitude and conduct of the community toward each of them and as a couple?
6. Support (economic)
(a) What were the financial arrangements between the parties regarding provision of or contribution toward the necessities of life? (food, clothing, shelter, recreation, etc.)
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(a) What was the attitude and conduct of the parties concerning children?
The seven factors approach from Molodowich was confirmed and adopted by the Supreme Court of Canada in M. v. H  2 S.C.R. 3. In M. v. H, the SCC stated that in looking to these factors to determine if there was a “conjugal” relationship, the parties do not have to meet all of the criteria listed, and that the factors may be present in varying degrees and that not all are necessary for the relationship to be found. In order to come within the definition, couples are not required to fit precisely the traditional marital model.
A recent English article reports that its Law Commission recommends that unmarried couples who have lived together for five years or more should be able to inherit from each other without writing a Will. The author notes certain other recommendations, contained in the Inheritance (Cohabitants) Bill:
· the entitlement should be applied after two years of cohabiting if a couple has a child, providing the child was living with the couple when one parent died;
· qualifying cohabitants should have the same entitlement under the intestacy rules as a spouse; and
· if the deceased has a husband or wife from a "fossil" marriage – where a couple are living apart but have never divorced – the surviving cohabitant has no entitlement to any of the estate.
The Law Commission apparently notes that cohabiting couples are among the people least likely to have a will. Under the current English intestacy laws, similar to our legislation, property is passed on to family members in order of closeness of the blood relation. However, like our system, unmarried partners are currently not entitled to the deceased partner’s property, but can apply to court for support. That said, this can be a costly and time-intensive process. I have always found it unfortunate in cases where long-time common-law spouses had to bear the expense and emotional drain of fighting for their dependant support award.
Given the reality here and abroad that cohabiting unmarried couples represent an increasing percentage of families, this type of legislative change may soon be solidified in the United Kingdom and make its way to us. It seems from the comments I read about this article that people are divided on the subject. I, for one, think that it is time for this type of review, especially if it could lead to a reduction in or narrowing of the types of dependant support claims we see in our system.
Thanks for reading,
Natalia R. Angelini – Click here for more information on Natalia Angelini.