February 26, 2024

Ontario law recognizes two forms of spousal relationships: marriage and common law partnerships. While certain statutes may modify or create their own definition of common law partnership, the definitions found at s.1 and s. 29 of the Family Law Act, RSO 1990, c F.3 are the standard. As a reminder, in Ontario, a common law relationship is defined as:

two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child

The Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”) affords different rights to married and common law spouses. For example, while both married and common law partners have the right to seek financial support from the estate pursuant to Part V of the SLRA, only married spouses have the right to inherit an estate on an intestacy. Set out below are two examples of when spousal relationships matter.

  1. Does it Matter if Common Law Spouses Live Together?

One of the most common challenge faced by common law spouses seeking support as a dependant pursuant to Part V of the SLRA is proving that they cohabited continuously for a period of not less than three years.

The 1993 decision in McEachern v Fry Estate, 1993 CarswellOnt 3632, [1993] OJ No 1731 (OCJ Gen Div) expanded the definition of “cohabitate.” The judge in that case found that the fact that the applicant and the deceased kept separate residences was not fatal to the applicant’s claim for support. Rather, in determining whether a couple are “spouses,” the court must look at the intention of the parties and the relationship wholistically. Justice Sheppard held:

Whether or not a couple have cohabited continuously is both a subjective and an objective test. What was the intention of the parties as gleaned from the facts and how were they regarded by others? Intention of the parties is important. In today’s world where often both spouses work sometimes in different cities and where work can keep them apart for often long periods of time, one must look at the relationship generally and not specifically item by item to see if the parties were in fact cohabiting in the legal sense or merely living together for the time being for whatever purpose. When you find as here a fifteen year period of companionship and commitment and an acceptance by all who knew them as a couple, surely you must have continuous cohabitation. It has been said that cohabitation is a state of mind.

  1. Does it Matter if Married Spouses Separate?

Previously, the SLRA made no distinction between married spouses who were committed to their marriage and married spouses who had separated but not divorced. As a result, spouses who had separated long ago and begun living completely independent lives could inherit their deceased’s partner’s estate if their spouse forgot to update their will to remove them or died intestate.

The introduction of ss. 17(3) and 43.1 into the SLRA changed that scenario. Now, separation matters. If married spouses are separated, the testator’s will will be read as though the separated spouse pre-deceased the testator. This means that a separated spouse is not entitled to act as estate trustee or inherit under the will. Similarly, a separated spouse can no longer inherit under the rules of intestacy.

Spouses are considered to be separated if they were living separate and apart at the time of death and:

(i)  the spouses had been living separate and apart as a result of the breakdown of their marriage for a period of three years immediately preceding the death,

(ii)  the spouses entered into a separation agreement, or

(iii)  a court or family arbitrator made an order with respect to their rights and obligations arising from the breakdown of their marriage.

Because the separation must have begun on or after January 1, 2022, these new provisions are not likely to impact most estates until 2025 at the earliest.