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The Law Discriminates Against Common Law Spouses

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Heather and Chaim never believed in marriage. They lived together for 20 years, had 3 children and were happy. Chaim was hit by a truck and dies. He had no Will. Had Heather been legally married she could have:

  1. had the right to elect for an equalization payment under the Family Law Act1; or
  2. received an inheritance by virtue of an intestacy under the Succession Law Reform Act2. Since there was no Will, Heather would have inherited a preferential share of the estate equal to $200,000 and 1/3 of the balance to share with the Chaim’s three children.

As a common law spouse the legislation only allows Heather to sue the Estate and seek support as a dependant. There is no statutory right to an inheritance or to property through an equalization payment. Clearly, Heather has fewer rights than she otherwise would have if she had married Chaim. Is the different treatment accorded to a common law spouse wrong? Does it offend the Charter of Rights and Freedoms?

The Charter of Rights and Freedoms3 has created a sea change in how Canadians view their laws and themselves. Canadians now challenge laws which they believe offend the equality provisions set out in Section 15 of the Charter of Rights and Freedoms.4 A Charter challenge is based on a two pronged test. The Court determines if the legislation discriminates against the claimant based on one of the listed grounds (or one that is analogous) and whether such discrimination is justifiable in a free and democratic society. Even if discrimination occurs, the legislation may still be valid if the impact is minimal or if it does not offend the dignity of the person.

In M v. H5. the Supreme Court of Canada compelled Ontario to change the definition of “Spouse” as set out in the support provisions of the Family Law Act. Prior to that case, common law heterosexual couples were included in the definition of spouse, but Gay and Lesbian couples, by omission, were excluded. The Supreme Court of Canada ruled that, for the purposes of support under the Family Law Act, a spouse includes “… either of two persons …”. The court ruled that the Family Law Act’s limiting the definition of spouses to heterosexual couples, for the purposes of support, was discriminatory and not justifiable. By changing the definition to “…either of two persons” the court redefined spouse to include couples made up of two men, two women or even two transvestites.

After M v H., Walsh v Bona6 surprised many observers and profoundly changed the Canadian legal landscape. In contrast to its decision in M v. H, the Supreme Court of Canada upheld the definition of “Spouse” an only being a married couple in matters relating to division of Property.

In Walsh v Bona, a common law relationship ended after ten years. The woman sought a share of her late common law husband’s assets, but the Nova Scotia Matrimonial Property Act (much the same as Ontario’s Family Law Act) only gave legally married people the right to a share of their partner’s property upon the dissolution of the relationship. Common law spouses did not have the same right. The Supreme Court of Canada held that the distinction did not offend the Charter of Rights and Freedoms because the differentiation was based on the individual’s choice as to whether or not to be married. Those choices are based, in part, on the legal rights and obligations that flow from choosing to be married. To wipe out the distinction between marriage and common law relationships takes away an individual’s freedom to choose between one type of family unit or the other.

Walsh v Bona has large implications for Estate Planning and Estate Litigation in Ontario. It seems that the distinction between married and common law spouses, in relation to property rights, does not offend the Charter. Accordingly, common law spouses are unlikely to successfully challenge the definition of spouse that precludes them from inheriting by virtue of the laws of intestacy under the Succession Law Reform Act, or from being permitted to make an election for an equalization payment under the Family Law Act.

In my view, regardless of the omission of common law spouse from the legislative definitions, disinheriting common law spouses is an invitation for estate litigation. Disinherited common law spouses still have common law remedies, the sufficiency of which, virtually guarantees estate litigation. For those in a common law relationship, the surest way to avoid estate litigation is to draft Wills that have their spouse’s needs in mind and include them as beneficiaries. Do not mistake this for moralizing; it is Machiavellian counsel on how to avoid estate litigation.

Despite the temptation to jump to conclusions, it would be a mistake to substitute this review of the topic for substantive legal advice. For those considering this option, there is no replacement for a competent solicitor’s own research, analysis and judgment.


1 Family Law Act, R.S.O. 1990, c. F.3 (back)

2 Succession Law Reform Act, R.S.O. 1990 (back)

3 http://laws.justice.gc.ca/en/charter (back)

4 Section 15 of the Charter of Rights and Freedoms state, “states that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” This enumerated list of characteristics against which discrimination is forbidden are only examples. Our courts have also prohibited discrimination against similar or analogous like ground. (back)

5 This case involved a motion to determine a point of law regarding the constitutional validity of s. 29 of the Family Law Act. Note it did not deal with the definition of spouse under property division section. Prior to the charter challenge and the resulting change Section 29 read “spouse” means a spouse as defined in subsection 1(1) [either of a man and woman who are married to each other], and in addition includes either of a man and woman who are not married to each other and have cohabited..” This definition precluded gay and lesbian couples from obtaining support and was ruled contrary to the Charter.(back)

6 Walsh v. Bona, 2002 SCC 83, 32 R.F.L. (5th) 81, 221 D.L.R. (4th) 1, 211 N.S.R. (2d) 273, 102 C.R.R. (2d) 1, [2002] 4 S.C.R. 325, 297 N.R. 203, 659 A.P.R. 273, 2002 CarswellNS 511, 2002 CarswellNS 512, [2002] S.C.J. No. 84. (back)

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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