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DEFINITION
The Ontario Family Law Act contains two definitions for the word "spouse." The first is a general definition that applies to Part I and Part II of the Act (respectively dealing with the division of matrimonial property and rights in the matrimonial home). That general definition is that a spouse is "either of a man or a woman who (a) are married to each other or (b) have entered into a marriage that is voidable or void in good faith on the part of the person (seeking) to assert any right (under Part I or Part II)."

In other words, in order to make a claim for a division of property or for the right to remain in the matrimonial home, the person making the claim has to be married to the person against whom the claim is made.

In section 29, there is a second definition of the word spouse that applies to Part III of the Family Law Act which deals with support obligations. Section 29 states that for the purposes of Part III, a spouse is as defined above, but also includes either of a man or woman who have "cohabited for a period of not less than three years (meaning for at least three years) or who are in a relationship of some permanence, if they are the natural or adoptive parents of a child." "Same sex spouse" is defined in the same way but means "either of the two persons of the same sex who have cohabited under those circumstances. Section 1(1) of the Family Law Act defines the word "cohabit" as "to live in a conjugal relationship whether inside or outside of marriage."

This Part III definition is the meaning that most people think of when they use the term "common law spouse." Many people mistakenly believe that a common law spouse has the same rights and obligations as a married spouse. This is not the case. Under the Family Law Act, a common law spouse only has the right to seek support from his or her partner. A common law spouse does not have the right to seek an equalization payment from the other spouse, nor may the common law spouse assert possessory rights in the matrimonial home. Having said that, however, there are other ways that a common law spouse can try to obtain the same kind of relief.

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DEFINITION OF COHABIT
As might be expected, the definition of spouse contained in section 29 of the Family Law Act has been subject to interpretation by the court. Courts have held that two people can be said to cohabit, even though one of them maintains a separate residence.

The court will consider a number of components in order to determine whether parties continuously cohabit for the purposes of section 29. These components include common shelter, the sexual behaviour of the parties, services the parties may have performed for each other, how the parties behaved socially (i.e., did they act like a "couple" by visiting each other’s parents or going on vacation together), societal (did one person extend insurance coverage to the other), and the economic relationship between the two.

In 1998, the honourable Mr. Justice O’Connell decided that where there was a child of a relationship, the fact that the parties maintained separate residences and were together only on weekends was enough to establish a "cohabiting" and a relationship of some permanence and hence bring them within the definition of a spouse.

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PROPERTY RIGHTS OF UNMARRIED COUPLES — DISCRIMINATION
Pursuant to Ontario's Family Law Act, following the breakdown of a marriage, spouses are essentially required to equally divide the value of all property they accumulated during the marriage. (These rules would not be relevant if the spouses had entered into a marriage contract.)

Couples, whether heterosexual or same sex, who decide to live together rather than marry, are not subject to these particular rules, regardless of the length of cohabitation.

A recent Nova Scotia case involving legislation similar to Ontario’s Family Law Act, raised the issue of whether these rules discriminated again unmarried couples. In that particular case, the couple, Walsh and Bona, had lived common law for 10 years and had two children. Following the breakdown of their relationship, Bona, the common law husband, was left with $66,000 worth of assets. Under Nova Scotia’s Matrimonial Property Act, had the couple been married, Walsh would have been entitled to a portion of the value of Bona’s assets. However, as an unmarried person, she was not entitled to any of it.

Walsh applied for child support and spousal support. She also sought a declaration that the Matrimonial Property Act was unconstitutional in failing to furnish her with the presumption, applicable to married spouses, of an equal division of matrimonial property. This latter part of her application was unsuccessful and she appealed.

The Nova Scotia Court of Appeal reversed the lower court’s decision, and declared that the legislation was indeed unconstitutional in the circumstances. The Court concluded that unmarried, opposite sex couples should have the same rights to share in matrimonial property, on separation, as married couples do.

The Nova Scotia government appealed the decision to the Supreme Court of Canada.

THE CHARTER OF RIGHTS AND FREEDOMS
Pursuant to the Charter of Rights and Freedom "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."

Walsh argued that she was being discriminated against under the law simply because she was not married and that this violated her Charter rights.

In a decision that surprised most family law practitioners, the Supreme Court of Canada allowed the appeal and overturned the Nova Scotia Court of Appeal. The Supreme Court basically decided that a heterosexual couple has the opportunity to decide whether to marry or to simply live together and having decided to live together, can be taken to have made a voluntary decision to forego their rights to a division of property.

The Court concluded that the different treatment was not discriminatory within the meaning of the Charter. They indicated that the distinction did not affect the dignity of unmarried persons and did not deny them access to a benefit or advantage available to married persons. Further, there is no discrimination because those who do not marry are free to take steps to deal with their personal property in such a way as to create an equal partnership between them, for instance by entering into a cohabitation agreement.

As a result of this decision, common-law spouses do not have any statutory right to claim a division of property if the relationship terminates. Therefore, it is essential to ensure that common-law spouses enter into a cohabitation agreement if one spouse is contributing to a property owned by the other spouse. In the absence of an agreement they have no statutory rights against the property of the titled spouse.

The only remedy available in these circumstances is by way of a claim for unjust enrichment or a constructive trust claim. These remedies are difficult to prove and are expensive to pursue. Alternatively, common-law spouses should ensure that property is jointly owned if both parties are contributing to the property.

COMMON LAW SPOUSES AND PROPERTY TRUST CLAIMS
Separated common law spouses have one main way to try to obtain an interest in the property of the other spouse and that is through a trust claim. In a trust claim, the person who does not own the property is claiming that the owner of the property holds a share of that property in trust for them even though there is nothing in writing giving the non-owner a share of the property.

There are bascially two types of trust claims – resulting trust and constructive trust. Trust claims are complicated, technical and expensive and the two forms of trust have subtle differences between them. One thing they have in common however is that the longer the relationship, the more likely it is that a court will impose a trust.

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RESULTING TRUST
A resulting trust is a presumption that the non-titled owner has a share in the property based on that person’s contribution to acquiring or maintaining the property.

What the court is looking for in a resulting trust claim is evidence of a common intention to share the property. That evidence can be through words or actions. A recent example involved a situation where a man and his parents each placed a 10 percent downpayment on some vacant land. The land was purchased was so the man and woman could build a home and they shared the cost and effort involved in building the home equally. The court decided that the woman should have an ownsership interest in the home because it had always been intended that the home would be shared by the man and the woman and because of her contributions to building the home.

The most obvious evidence demonstrating a common intention to share property is where there is an equal and direct financial contribution to purchasing the asset. For example, if the money used to purchase the home came from a joint account into which both parties deposited money, that fact alone can establish that each party has an interest in the home, even though title to the home is in the name of one party only.

Sometimes a resulting trust will be found to exist based on labour alone. In one case the woman was too young to be placed on title to the property when it was acquired but she and the man had looked for and selected the property together. The man had told her the property was as much hers as his and the woman contributed a great deal to the renovation of the home, including stripping wallpaper, breaking up concrete, painting the walls, etc. Based on these facts, the court held that the woman had an interest by way of a resulting trust

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CONSTRUCTIVE TRUST
A constructive trust does not require the court to find evidence of a common intention to share the property. This distinguishes it from a resulting trust. Basically, a constructive trust is a remedy that is imposed when the court feels that one party would be unjustly enriched at the expense of the other party if the other party was not given some degree of ownerhsip in an asset.

In order for a cosntructive trust to be found, there has to be an unjust enrichment to the party who owns the property, a related deprivation to the party making the trust claim and no legal reason (e.g., a contract or a gift) to explain the situation.

A constructive trust can be used to establish an interest in savings. In the Ontario case of Trotter v Trotter, the woman stayed at home babysitting the children and cared for her spouse and the home. The woman claimed that she should be entitled to a share of the man’s assets including his pension, his R.R.S.P. and his company. She argued that her contributions allowed the man to save money on childcare and spend more time at work, thus increasing the value of his pension and his savings. The man argued that the spouse had been compensated for her efforts because he had paid for her shelter, food and clothing. The court held that the woman’s housekeeping and childcare duties were valuable benefits that entitled her to share in the husband’s savings, his R.R.S.P’s but not his pension, because the connection was not direct enough.

Still, where the connection between the services provided and the pension can be made (as, for example, where providing child care allowed a unionized worker to work substantial overtime thereby increasing his pension) then a constructive trust may be created.

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COMMON LAW SPOUSES AND SUPPORT
Although many judges would deny it, it appears as though common law spouses are often awarded less support or are given support for a shorter duration than married spouses.

The factors that affect entitlement to support and the amount of support are generally the same between married and common law spouses and you should refer to our segment on spousal support for guidance as to the law in this area.

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COMMON LAW SPOUSES AND THE MATRIMONIAL HOME
As we have seen, the only people entitled to exclusive possession of the matrimonial home are spouses who are married to each other. There is a possible way for common law spouses to obtain exclusive possession, however.

Section 34 of Part III of the Family Law Act deals with the types of orders a court can make when dealing with spousal support. Subsection (1)(d) says that a court can make any order "respecting any matter to be ordered under clause 24(1)(a) – (e). Those clauses basically deal with rights in the matrimonial home.

There is, however, a great deal of confusion about 34(1)(d). Some judges have interpreted a Court of Appeal decision (Miller v. Miller) to mean that a court can only make an order under 34(1)(d) if the parties are married. Other judges have said that is not what the Miller decision means. A golden opportunity was provided in 1998 to have the matter settled once and for all when the Ontario Divisional Court granted the right to appeal a decision that denied a common law spouse exclusive possession. Unfortunately, the appeal was never heard. It is still unsettled, therefore, whether a common law spouse has possessory rights in the matrimonial home.

Regardless of whether or not a common law spouse has possessory rights, it is clear that a common law spouse does not have the right under the Family Law Act, to restrict their partner’s ability to deal with a "matrimonial home," meaning to mortgage or sell it.

Another way of dealing with the matrimonial home might be through a non-molestation order (often called a restraining order) under section 46 that prevents one spouse from annoying or harassing the other spouse.

These orders often contain very strict parameters that include orders requiring the one spouse to stay away from a particular address. It could be that in certain fact situations where abuse is an issue, a common law spouse could be given sole possession of the matrimonial home by way of a non-molestation or restraining order.

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COMMON LAW SPOUSES AND BENEFITS
Most insurance policies and government programs now provide for coverage for common law spouses and common law spouses should investigate designating the other spouse as a beneficiary under these policies to ensure there is some protection for his or her partner in the event of a catastrophic incident.

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COHABITATION AGREEMENTS
The best way for common law spouses to obtain the same rights as married spouses would be for them to sign a cohabitation agreement.

A cohabitation agreement is a written document where the parties to the agreement can provide for division of property, support or any other matter on death or the termination of the relationship. A cohabitation agreement could, therefore, incorporate all or some of the property provisions of the Family Law Act so that a common law couple would have the same rights and obligations of a married couple

As with marriage contracts, cohabitation agreements are not easy to negotiate, as it is difficult to objectively consider the termination of a relationship or to predict how the relationship will play out. It is, however, a far better, more certain and less expensive option than going to court to determine the issue after the event.

There are certain formal requirements that must be observed for a cohabitation agreement to be enforceable and we do not recommend that people simply try to draft one on their own. Also, we strongly suggest that each party obtain independent legal advice concerning the contents of the agreement before they sign the agreement, otherwise the agreement might be set aside.

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