BY: VALERIE DYE
In Canada persons in common law, relationships are given many of the same rights as married persons. One of the rights that common law couples enjoy is survivorship rights under the Pension Benefits Act. A common law spouse may also claim spousal support if the common law relationship is terminated.
In addition to the rights enjoyed by common law couples, some persons perceive the status of common law as being detrimental to their plans. For instance, persons may have a tax advantage if they are considered not to be common law couples. Furthermore, under the Ontario Disability Support Programme (ODSP), the income of a spouse will be considered for the purpose of calculating how much support will be paid to a person entitled to disability support. The ODSP considers a common law spouse as ‘spouse’ for this purpose.
Under section 29 of the Family Law Act, a spouse includes either of two persons who have cohabited continuously for a period of not less than three years or are in a relationship of some permanence if they have a child. In many instances ‘co-habit’ may be confused with -co-resident’. The Supreme Court of Canada stated in Hodge v. Canada (Minister of Human Resources Development) that ‘cohabit’ is not synonymous with ‘co-residence’. This means that persons may be living in the same residence but still not be cohabiting as common law spouses. Similarly, persons may be residing in separate residences and still be cohabiting and as such may be considered as common law spouses. In Stephen vs Stawecki. The plaintiff tried to recover pecuniary losses as a spouse after the death of her partner. The plaintiff and the deceased maintained separate residences but spent several nights per week in each others’ apartments. They also did everything together and were seen by friends as a couple. They did their laundry together at the home of the deceased, bought groceries and prepared meals together. They also spent Christmas together with the plaintiff’s children and celebrated as a family. The Court concluded that although the parties maintained separate residences they still cohabited in a conjugal relationship. The Court of Appeal upheld this finding and stated that: 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.
Similarly, the courts have noted that two persons may be living under the same roof and still not be cohabiting as common law spouses. Furthermore, having a child together or engaging in sexual activities are not by themselves enough to conclude that a common law relationship exists. To determine whether or not a common law relationship exists one needs to look at the intention of the parties. To determine the parties’ intention, one may consider, among other things, whether or not a conjugal relationship exists, how exclusive the relationship is, the extent to which the parties operate as an economic unity, the extent to which they support each other the degree of financial dependence or interdependence and the manner in which they own, use or acquire property.