The definition of “spouse” is constantly being honed and refined. In the family law and estate law contexts, whether someone is considered to be a spouse has major impacts when it comes to his/her ability to claim spousal support or dependant support.
Over the last twelve months, the Ontario legislature has been attempting to update the definition of “spouse”, in order to make it as inclusive as possible. In fact, the legislature has redefined it twice. But were they successful?
Change #1: the All Families Are Equal Act
In December 2016, Bill 28 received royal assent. Titled the All Families Are Equal Act, the Bill aimed to update a number of Acts relating to parenting and related registrations. It redefined legal parentage and expanded the rights for same-sex parents. You can read more about the Bill in our previous blog post here.
It also changed the definition of “spouse” in Part V of the Succession Law Reform Act (SLRA) to be the same as in Section 1 of the Family Law Act; that is, two people who are either:
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void
However, this change omitted any mention of divorced spouses or annulled marriages, so it effectively meant that a divorced spouse was no longer classified as a “spouse” for the purposes of dependant support. Therefore, that person would not be able to claim support from their deceased ex-spouse’s estate.
The previous definition in the SLRA included two people who “were married to each other by a marriage that was terminated or declared a nullity”, which clearly would include divorced spouses and couples who have annulled their marriage.
Change #2: the Stronger, Healthier Ontario Act
Understandably, this change to the definition was very controversial.
In May 2017 with the passing of Bill 127, the Stronger, Healthier Ontario Act, the Ontario government corrected the definition. They amended the SLRA by adding the following to the definition:
“and in addition includes either of two persons who were married to each other by a marriage that was terminated by divorce”.
The revised definition of “spouse” leaves no doubt that divorced spouses can qualify as a dependant of their deceased ex-spouse within the meaning of Part V of the SLRA.
However, the definition does not contain a reference to those individuals whose marriage was “declared a nullity”, as the previous definition did. As a result, it is still debatable whether individuals whose marriage has been annulled would be considered a “spouse” under the SLRA, and whether they have the standing to bring an application for dependant support.
The law is constantly evolving; unfortunately, in this case it has resulted in a loss of rights for individuals whose marriage has been declared a nullity. In an attempt to make the definition more inclusive, the government has actually excluded individuals who were included before.
For more information about dependant support, contact our Estate Litigation Group.