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Difference between revisions of "Unmarried Spouses"
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For example, family law in British Columbia generally applies to people who are ''spouses'', ''parents'' and ''guardians'', and the ''[[Family Law Act]]'' has definitions of the terms "spouse," "parent" and "guardian." You won't have any of the rights and responsibilities that guardians have, for example, unless you meet the act's definition of "guardian." | For example, family law in British Columbia generally applies to people who are ''spouses'', ''parents'' and ''guardians'', and the ''[[Family Law Act]]'' has definitions of the terms "spouse," "parent" and "guardian." You won't have any of the rights and responsibilities that guardians have, for example, unless you meet the act's definition of "guardian." | ||
The ''[ | The ''[https://canlii.ca/t/7vfd Canada Pension Plan]'', on the other hand, applies to people who are ''spouses'' or ''common-law partners'', while Alberta's ''Family Property Act'' applies to people who are ''spouses'' or ''adult interdependent partners'', and the ''Family Law Act'' of Newfoundland and Labrador applies to people who are ''spouses'', ''partners'' and ''parents''. Each law defines what it means by these terms. Under section 2(1) of the ''Canada Pension Plan'', for example, a "common-law partner" is: | ||
<blockquote><tt>a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year.</tt></blockquote> | <blockquote><tt>a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year.</tt></blockquote> | ||
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===Provincial legislation=== | ===Provincial legislation=== | ||
For most provincial laws, the question is whether or not a particular couple are "spouses." Qualifying as a spouse might mean that you're entitled to the family rate for MSP, that you can share in your spouse's estate if your spouse dies, or that you're no longer entitled to social assistance under the ''[ | For most provincial laws, the question is whether or not a particular couple are "spouses." Qualifying as a spouse might mean that you're entitled to the family rate for MSP, that you can share in your spouse's estate if your spouse dies, or that you're no longer entitled to social assistance under the ''[https://canlii.ca/t/84l7 Employment and Assistance Act]''. It also might mean that you're entitled to ask for spousal support or the division of property under the ''[[Family Law Act]]'' if your relationship ends. | ||
In general, for most but not all provincial laws, you must have lived with your partner for at least two years to qualify as a spouse. Here's the definition of "spouse" from section 2(1) of the provincial ''[ | In general, for most but not all provincial laws, you must have lived with your partner for at least two years to qualify as a spouse. Here's the definition of "spouse" from section 2(1) of the provincial ''[https://canlii.ca/t/8mhj Wills, Estates and Succession Act]'': | ||
<blockquote><tt>... 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and</tt></blockquote> | <blockquote><tt>... 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and</tt></blockquote> | ||
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<blockquote><tt>(2) A spouse includes a former spouse.</tt></blockquote> | <blockquote><tt>(2) A spouse includes a former spouse.</tt></blockquote> | ||
Here's the definition from section 1 of the provincial ''[ | Here's the definition from section 1 of the provincial ''[https://canlii.ca/t/84gj Adult Guardianship Act]'': | ||
<blockquote><tt>"spouse" means a person who</tt></blockquote> | <blockquote><tt>"spouse" means a person who</tt></blockquote> | ||
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Most federal laws distinguish between "spouses," people who are legally married, and "common-law partners," who aren't. Qualifying as a common-law partner might mean that you are entitled to a share of your partner's CPP credits, receive the Old Age Security spouse allowance or survivor's benefits, or the spouse amount for the GST Credit. | Most federal laws distinguish between "spouses," people who are legally married, and "common-law partners," who aren't. Qualifying as a common-law partner might mean that you are entitled to a share of your partner's CPP credits, receive the Old Age Security spouse allowance or survivor's benefits, or the spouse amount for the GST Credit. | ||
In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from section 2 of the ''[ | In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from section 2 of the ''[https://canlii.ca/t/7vjx Old Age Security Act]'': | ||
<blockquote><tt>"common-law partner", in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.</tt></blockquote> | <blockquote><tt>"common-law partner", in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.</tt></blockquote> | ||
Here's the definition from section 248 of the ''[ | Here's the definition from section 248 of the ''[https://canlii.ca/t/7vb7#sec248 Income Tax Act]'': | ||
<blockquote><tt>"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and </tt></blockquote> | <blockquote><tt>"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and </tt></blockquote> | ||
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==Qualifying as an unmarried spouse== | ==Qualifying as an unmarried spouse== | ||
It's usually pretty hard to argue that you're not married if you're a married spouse. You had a ceremony in front of a bunch of people, including at least two witnesses as required by section 9 of the provincial ''[ | It's usually pretty hard to argue that you're not married if you're a married spouse. You had a ceremony in front of a bunch of people, including at least two witnesses as required by section 9 of the provincial ''[https://canlii.ca/t/846b Marriage Act]'', and exchanged vows and rings. Even if you've lost your ring and hidden your marriage certificate, those witnesses will still be around to talk about your wedding. | ||
It's a lot easier for unmarried spouses to argue about the status of their relationship, and the stakes can be quite high. If a couple were just roommates, for example, neither of them will be able to ask for a share of the family property or for a contribution to the family debt, and neither will be able to ask the other to pay spousal support. | It's a lot easier for unmarried spouses to argue about the status of their relationship, and the stakes can be quite high. If a couple were just roommates, for example, neither of them will be able to ask for a share of the family property or for a contribution to the family debt, and neither will be able to ask the other to pay spousal support. | ||
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==="...In a marriage-like relationship"=== | ==="...In a marriage-like relationship"=== | ||
This is a more difficult question, because we're talking about people's ''intentions'' and ''beliefs'', not where they keep their socks and underwear | This is a more difficult question, because we're talking about people's ''intentions'' and ''beliefs'', and not simply where they keep their socks and underwear. Whether a relationship is ''marriage-like'' also typically depends on more than just their intentions. Objective evidence of the parties' lifestyle and interactions provides direct guidance on the question of whether the relationship is marriage-like. | ||
In a 1998 case called ''[ | This question comes up often enough that there are some really good cases that talk about what a "marriage-like relationship" involves. ''[https://canlii.ca/t/jx99d L.T.F. v R.B.F]'', 2023 BCSC 834, is a recent case where the court summarizes leading cases and various factors to bear in mind when trying to determine the starting date of a marriage-like relationship. | ||
In a 1998 case called ''[https://canlii.ca/t/1dz3n Takacs v Gallo]'', our Court of Appeal said that you can sometimes tell whether a relationship is marriage-like or not by looking at these factors: | |||
*'''Shelter:''' | *'''Shelter:''' | ||
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In a nutshell, where people don't agree whether their relationship is "marriage-like," the court will look at how the people involved in the relationship presented themselves to their family and friends, how they ran their household and how they arranged their finances. Did they present themselves as a family unit? Did they conduct their personal affairs as a family unit? Did they have shared bank accounts? Did they go to parties together? Were they sexually exclusive? Did they have or plan on having children? | In a nutshell, where people don't agree whether their relationship is "marriage-like," the court will look at how the people involved in the relationship presented themselves to their family and friends, how they ran their household and how they arranged their finances. Did they present themselves as a family unit? Did they conduct their personal affairs as a family unit? Did they have shared bank accounts? Did they go to parties together? Were they sexually exclusive? Did they have or plan on having children? | ||
The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, ''[ | The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, ''[https://canlii.ca/t/5bpc Yakiwchuk v Oaks]'', talked about the difficulty of determining what is and what is not a "marriage-like" relationship by looking at how varied marriages themselves can be: | ||
<blockquote>"Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property — in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important — for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their 'spouse' by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some 'spouses' do everything together — others do nothing together. Some 'spouses' vacation together and some spend their holidays apart. Some 'spouses' have children — others do not. It is this variation in the way human beings structure their relationships that make the determination of when a 'spousal relationship' exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist."</blockquote> | <blockquote>"Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property — in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important — for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their 'spouse' by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some 'spouses' do everything together — others do nothing together. Some 'spouses' vacation together and some spend their holidays apart. Some 'spouses' have children — others do not. It is this variation in the way human beings structure their relationships that make the determination of when a 'spousal relationship' exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist."</blockquote> | ||
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==The rights and responsibilities of unmarried spouses== | ==The rights and responsibilities of unmarried spouses== | ||
Section 215(1) of the federal ''[ | Section 215(1) of the federal ''[https://canlii.ca/t/7vf2 Criminal Code]'' requires each person to provide their "common-law partner" with the "necessaries of life." Apart from this one provision of the criminal law, there is no legislation that defines the duties unmarried spouses owe to each other during their relationship. | ||
When unmarried spouses separate, however, each of them has certain entitlements under the provincial ''[[Family Law Act]]''. A separated person who has lived with their unmarried spouse for ''at least two years'' can ask for: | When unmarried spouses separate, however, each of them has certain entitlements under the provincial ''[[Family Law Act]]''. A separated person who has lived with their unmarried spouse for ''at least two years'' can ask for: | ||
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===Social assistance=== | ===Social assistance=== | ||
The ministry that administers the ''[ | The ministry that administers the ''[https://canlii.ca/t/84l7 Employment and Assistance Act]'' and is responsible for social assistance often treats people living together as a couple as being in a spousal relationship, whether they are or aren't in that kind of relationship. This may decrease, and sometimes terminate, your entitlement to benefits under what's known as the "spouse in the house" rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually revert to treating you as single. | ||
===Employment Insurance=== | ===Employment Insurance=== | ||
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* ''[https://canlii.ca/t/8q3k Family Law Act]'' | * ''[https://canlii.ca/t/8q3k Family Law Act]'' | ||
* [ | * [https://canlii.ca/t/8rdx Family Law Act Regulation] | ||
* ''[https://canlii.ca/t/551f9 Divorce Act]'' | * ''[https://canlii.ca/t/551f9 Divorce Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/7vb7 Income Tax Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/84gj Adult Guardianship Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/7vjx Old Age Security Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/84l7 Employment and Assistance Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/7vfd Canada Pension Plan]'' | ||
===Links=== | ===Links=== | ||
* [ | * [https://clicklaw.bc.ca/resource/4646 Legal Aid BC's Family Law website's common questions on Finances & Support] | ||
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions" | ** See "How is property divided when a common-law relationship ends?" under the heading "Common questions" | ||
* [ | * [https://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension] | ||
* [ | * [https://clicklaw.bc.ca/resource/4648 Aid BC's Family Law website's information page "Going through separation"] | ||
** See "Proving you're separated if you and your spouse still live together" | ** See "Proving you're separated if you and your spouse still live together" | ||
* [https://www.clicklaw.bc.ca/resource/1251 When Your Common-Law Spouse Dies] from Dial-a-Law by the People's Law School | * [https://www.clicklaw.bc.ca/resource/1251 When Your Common-Law Spouse Dies] from Dial-a-Law by the People's Law School | ||
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{{REVIEWED | reviewer = [[JP Boyd]], March 25, | {{REVIEWED | reviewer = [[JP Boyd]], March 25, 2023}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
