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As perceptions around the importance of marriage change, and the stigma surrounding living with your partner, despite not being married declines, it is becoming common place for couples to choose to live in common law relationships, and forego marriage. As this trend increases, the courts and legislature are struggling with protecting individual rights when common law relationships breakdown, and simultaneously allowing people the freedom to chose whether they want to accept the obligations that typically arise on marriage. Recently, the Supreme Court of Canada was given the opportunity to decide whether common law couples in Quebec should be granted the same rights to property and spousal support as married couples when their relationships break down (Attorney General of Quebec v. A., 2013 SCC 5).

In Ontario, on the breakdown of the relationship, married spouses are entitled to equalize their property and may be entitled to spousal support. Common law spouses are not entitled to equalize their property, although they have the right to seek spousal support from a former common law spouse and may have property claims against a former common law spouse, although based on equitable principles as opposed to claims under Ontario's Family Law Act. In Quebec, people can either be married, enter into a civil union, or be de facto spouses. De facto spouses are similar to common law partners in that they have not formalized their relationship through marriage or union. Under Quebecois legislation, de facto spouses are excluded from property sharing or spousal support obligations. In Attorney General of Quebec v. A., the Supreme Court was divided in their results and reasoning, but the majority concluded that the exclusion of de facto spouses from support and property rights is justified under the Charter of Rights and Freedoms.

Of note, the minority reasoned that de facto spouses should be entitled to support because dependency between partners is often a gradual progression that happens to people in a relationship. The dependant spouse, who is vulnerable on the breakdown of the marriage should be afforded some protection. Further, they reasoned that spousal support has been historically designed by the legislature to provide a remedy for dependant spouses who face financial hardship at the end of the relationship. Given that common law spouses face the same hardships, they should be granted access to the remedy of spousal support. Denying them access to the protections that a married person would obtain would represent discrimination against the de facto spouse based on their marital status.

The majority reasoned that the government could exclude common law spouses from spousal support in an attempt to maximize choice. They reasoned that some people choose not to marry or enter into a civil union because they do not want to develop support obligations towards each other, and that excluding them from spousal support is not discriminatory. Further, supporting people's autonomy was a justified goal of the Quebec government. Similarly, property should only become family property if spouses deliberately decide they wish to begin a financial partnership. Spouses have the right to decide whether they want to participate in this regime, and can do so through marriage.

Freedom of choice is certainly a laudable goal, however, the reality is this freedom is often illusory. For example: A. wanted to get married, but B. refused leaving her with little choice. Regardless of whether a couple is married or not, it is possible to opt in, or opt out, of most obligations. If both people agree, couples can enter into domestic contracts which can define their obligations regarding property and support. In that way, the argument is really about what our default position should be. Is the default position to allow common law spouses property and support rights, or not? Either way, people will have the freedom to opt out. I would suggest that the most vulnerable people usually do not have the resources or knowledge to enter into domestic contracts, so perhaps our legislation should be protective and provide property and support rights to common law and de facto spouses. Those who have the resources and knowledge can then choose to opt out of the protections provided by the legislation.

The bottom line is if we really want to have a 'choice' about our obligations to our partner, we should be talking more about our financial interrelationships, whether you are going to have one or not, and what our long-term expectations are about our finances. People shy away from these questions because it is taboo to talk about the breakdown of a relationship, but regardless of whether the relationship ever ends, it's important to talk about how you are going to live your financial life together. That usually has an impact on what happens if you do separate, but that doesn't have to be the reason to have the conversation. You can only enter into the type of relationship, and/or agreement that truly reflects your wishes if you know your rights.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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