In Nova Scotia, we have a comprehensive statutory regime to deal with matters arising from the breakdown of a marriage. However, when parties have chosen not to marry, it is a wholly different matter. Parties’ rights are affected by a mosaic of statute law and judge made law. This Law Letter will attempt to clarify the often confusing issues that arise upon the breakup of a common-law relationship.
What is a Common-Law Relationship?
The notion of a common-law relationship is simple enough. Any unmarried couple in a domestic relationship may be recognized as being in a common-law relationship. Simply cohabiting does not give rise to a common-law relationship; however, parties must be involved in an exclusive, likely conjugal, relationship such that they would be recognized by others as a couple.
How long a couple must cohabit depends on what issue you are addressing; for example, spousal support, division of property, etc. As we will see, different rules apply to each situation.
Where one party may be entitled to receive spousal maintenance payments, those rights are governed by the Maintenance and Custody Act of Nova Scotia. This act provides a framework for the determination of rights to child support, child custody, and spousal support. Spousal support can only be claimed if a couple has been in a common-law relationship for two years or more. Section 2 (aa) defines “common –law partner” as follows:
- 2 In this Act,
- (aa) "common-law partner" of an individual means another individual who has cohabited with the individual in a conjugal relationship for a period of at least two years;
Whether a common-law spouse is entitled to spousal support, and if so, in what amount and for how long, is a complex legal issue involving the analysis of a number of factors. You should consult an experienced Family Law Lawyer.
Perhaps the most misunderstood issue that arises on the breakup of common-law couples is their rights with respect to property. What must be understood at the outset is that apart from some very specific statutes (i.e. concerning pensions for military members) there is no legislated entitlement to share in the property of the other party. It may be that parties have titled property jointly (i.e. home, vehicle, bank account, or a debt) and these items will generally be divided equally. But unlike the Matrimonial Property Act, which presumes an equal sharing of all property of married parties (regardless of whose name the property is in), there is no statutory presumption that creates an entitlement for one party to share in property that is titled in the other’s name, regardless of whether it was brought into the relationship or was acquired during the relationship.
Until very recently, if one party was to make a claim to property of the other on the dissolution of the relationship, they did so via legal constructs known as the Constructive Trust and Unjust Enrichment. In order for a party to show an entitlement to property of the other, they must show that they conferred a benefit on the other party, that they were correspondingly deprived, and that there was no juristic reason for the conferral of the benefit. The benefit can take a great many forms. It can be a direct monetary contribution, or it can be an indirect contribution such as keeping the home and raising the children so as to allow the other party to establish a career.
Walsh v Bona
In a landmark decision from the Supreme Court of Canada in 2002, it was determined that the Matrimonial Property Act was constitutionally valid, even though it did not provide rights to unmarried couples. The Court ruled that marriage was a choice made freely and voluntarily by individuals, and as such the effect of exclusion from the prescriptions in the Matrimonial Property Act was not discriminatory. As long as people understood that marriage carries with it certain rights, and people were free to ascribe to those rights, the Act itself could not be said to differentiate between common-law couples and married couples.
As a result, common-law couples were left with common-law principles described above to guide them with respect to the division of their property.
Kerr v Baranow
In early 2011, the Supreme Court of Canada released its decision in the case of Kerr v Baranow. Perhaps the most significant aspect of this decision is the recognition of a “joint family venture,” a concept that recognizes in the facts of the domestic relationship the “mutual effort, economic integration, actual intent and priority of the family.”
The Court noted that “the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent to which the parties have formed a true partnership and jointly worked towards important mutual goals. The use of parties’ funds entirely for family purposes or where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities and enabling him or her to pursue activities in the paid workforce, may also indicate a pooling of resources. The more extensive the integration of the couple’s finances, economic interests and economic well‑being, the more likely it is that they have engaged in a joint family venture.”
If a joint family venture is found to exist, and it is determined that one party has derived a benefit at the expense of the other, then the analysis will turn to the quantification of that benefit.
If there is no finding of a joint family venture, it is still open to a party to show an entitlement on the basis of the traditional unjust enrichment/ constructive trust analysis.
Registered Domestic Partnership
Following the decision of our Court of Appeal in Walsh v Bona, the Nova Scotia legislature acted to alleviate the potential effect on unmarried parties by amending the Vital Statistics Act. The legislature enacted a provision that allowed unmarried couples to register as a domestic partnership, with the effect that the Matrimonial Property Act (as well as other Acts) would apply to them.
Under Canada’s Pension Benefits Division Act, which governs federally regulated employees such as members of the Department of National Defence and the RCMP for example, a common-law spouse could acquire rights in the pension of their spouse after one year of conjugal cohabitation.
For employees that are governed by the provincial legislation (which is the majority of employees) the Province passed a new Pension Benefits Act, but the Act has not yet been proclaimed in force. Under the new Act, a common-law spouse could acquire rights in the pension of their spouse after three years (if either of the spouses are married) or one year (if neither of the spouses are married).
Our Courts have suggested that the pension legislation does not establish entitlement to the pension, but merely the mechanism for division once entitlement is established. The entitlement must be established in accordance with the provisions described in Kerr v Baranow.
Under the Canada Pension Plan, a common-law partner must have been living with the other spouse for at least a year before they are entitled to split the CPP Credits or receive a survivor pension. An application for division of CPP Credits must be made within four years from the separation (there is no time limit for married spouses to apply).
Keep in mind that common-law couples are often in a very different position than their married counterparts when one spouse dies. For example, when someone dies without leaving a will, their common-law spouse is not automatically entitled to a share of the deceased spouse’s estate, as would they would be if they were married.
A dependent spouse who is married has certain rights to claim against their deceased spouse’s estate under the Testators Family Maintenance Act. However, these rights do not apply to common-law spouses.
When someone is incapable of making a decision regarding health care, the Personal Directives Act treats common-law couples equally to married spouses (provided they have been living in a conjugal relationship for at least a year). However, when decisions have to be made about organ donations, the Human Tissues Gift Act draws a clear line between common-law and married spouse, with only married spouses being able to donate the organs of their spouse.
Copyright: April 2013
This Lawletter has been provided for general reference only. For advice on an actual matter, you should consult a lawyer. For further information please contact a Family Lawyer:
Jessica D. Chapman
Deborah I. Conrad
Peter D. Crowther
Bryen E. Mooney
Terrance G. Sheppard