Differentiating common law from marriage in family law

A half-decade and more ago, family formation took a traditional pattern: A couple legally married, had children and the wife typically stayed home to care for home, husband and offspring, sometimes sacrificing a career she may have had prior to marriage, and the marriage would last decades.

Today, legal marriage is less common and divorce rates are much higher, couples often remain childless and a woman may continue a career in which she may earn more than her spouse, whether legal or common law.

Yet when people legally marry, they can trust that assets accumulated during their marriage will be divided equally if the marriage dissolves. That’s not the case for common law couples in most of Canada; however, even where it is not legislated, courts may be increasingly recognizing that property rights apply to cohabitants.

But will the legislation follow suit?

Property division on dissolution of common law marriage has “been an issue for decades,” says Robert Leckey, dean of the Faculty of Law at McGill University. A small handful of provinces — British Columbia, Saskatchewan and Manitoba, along with Nunavut and the Northwest Territories — have changed their legislation to treat common law couples the same as legally married couples on dissolution of the relationship.

“Where that hasn’t been done, courts are adapting the common law rules they work with,” says Leckey. “Sometimes, we have the idea that if the legislature doesn’t act, the law stays static. That's not happening.”

In the jurisdictions where the law has not been reformed by legislators, “the courts have been gradually changing, with a view to try to mitigate some of the injustice perceived as arising when a couple breaks up after a long cohabitation,” he says.

The Supreme Court of Canada, however, has upheld the distinction between legal marriages and common law unions when deciding on property division and spousal support. In a case commonly referred to as Eric v. Lola (Quebec (Attorney General) v. A, 2013 SCC 5), the Supreme Court decided that the laws as they applied to common law couples did, in fact, violate the Charter, but that the violation could be justified under s. 1.

And in an earlier decision known as Walsh v. Bona (Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83), the Supreme Court ruled that it was not discriminatory for the Nova Scotia Matrimonial Property Act to exclude common law couples from the definition of "spouse."

In these decisions, “they say, people choose not to get married for a reason,” says Stephen Grant of Grant Crawford Watson LLP in Toronto, who has handled the dissolution of common law as well as legal marriages in his practice. “The courts have been clear that there is a definite distinction between marriage and cohabitation.”

Robert Shawyer of Shawyer Family Law & Mediation in Toronto says the decision in Walsh v. Bono was made prior to more recent Charter cases, and the decision in Eric v. Lola dealt with the Civil Code of Quebec and not other provinces’ property regimes.

He says property regimes in provinces such as Ontario and Alberta would be held to be unconstitutional if challenged, “because, from my reading, [Quebec v. A] applied strictly to Quebec’s civil law system and division of property, which is rules- and statute-based, as opposed to common law jurisdictions” which are rules- and precedent-based.

In her dissenting reasons in Quebec v. A, Justice Rosalie Abella alluded to Walsh v. Bono, which challenged Nova Scotia’s property law division. “She said the problem with that [decision] was that it . . . doesn’t accord with the more updated jurisprudence in regards to how you determine whether something is discriminatory, [and it] conflates the government’s obligation to defend the law under s. 1 with the moving party’s obligation to prove discrimination,” Shawyer says.

“It really does come down to, all things being equal, a moral question, whether or not we are willing to accord the same rights to common law couples as to legally married couples.”

Amendments to the Divorce Act did not include property rights for common law couples, he says, and as a result there is a hodgepodge of property regimes. “If you look internationally, you’ll see that other common law jurisdictions have the same sets of property rights for common law as for married couples.”

Encouragement by the federal government to make property division and spousal support in common law relationships consistent with the regime for married couples “would be helpful. But at the end of the day, what it's going to require is constitutional challenges.”

But even without legal marriage, a cohabitant can seek money from another under the principle of unjust enrichment, for example, which says that if one party has enriched another and later been impoverished as a result, that party can ask the other to return some of that enrichment. McGill Law’s Leckey has a five-year research grant to look at cohabitation and legal reforms in provinces such as B.C. and Saskatchewan, as well as provinces such as Ontario that have not adapted.

His research takes two strands: common-law bases for making a claim against a former partner for unjust enrichment. In Saskatchewan and B.C., which will take advantage of the new legislation that says property must be divided equally on breakup, Leckey saw “a slight change in profile, a broader range of families accessing the courts and amounts of money given up, but not a revolution.”

Something he found interesting in looking at cases under the new legislation was a new source of dispute: the category of unmarried couple.

“There are a lot more disputes about whether two people were living together in a marriage-like relationship,” he says, “which is the criterion in B.C., or whether they were living in a conjugal relationship, which is a criterion under some of the other provinces’ laws. It’s interesting to see that even when the legislature reforms the law, there will be bases for resisting, and there will be . . .  perhaps quite expensive disputes in front of the courts around whether someone's eligible” for equalizing of assets.

While Quebec has been “a little slower to move” toward adopting new legislation, he says, “what's interesting is that the legislature may think [that,] by doing nothing, it's sort of freezing the law.” However, “there's real pressure, like real people with their stories in front of the courts puts the judges under pressure. Judges perceive a family when people have been living together and raising kids together.” And even recent changes to the province’s civil procedure treat unmarried couples like married couples in terms of family rules and the need to advise mediation, he says.

Grant doesn’t see Ontario, for one, moving in the direction of the provinces and territories that give the same treatment to legal and common law marriages, although he notes that common law legal principles for dividing property have changed to acknowledge not only unjust enrichment but the concept of “joint family ventures,” in which the contributions of both spouses have resulted in an accumulation of wealth.

“What it comes down to,” Grant says, “is whether you’re recognizing that people don’t get married for a reason, having to do with the economic consequences of marrying; and if you want to respect those rights to not get married and not get into a regime of . . . equalizing of assets, then you’re not going to enact legislation that will make common law the same as married.”

Changing social norms, changing families

13.9% increase in number of common law couples in Canada between 2006 and 2011

3.1% increase in number of married couples in Canada between 2006 and 2011

16.7% of census families were common law couples in 2011

16.3% of census families were lone-parent families in 2011

Fewer children at home

Between 2006 and 2011, couples with children living at home continued to fall as a share of all census families.

39.2% of census families who were couples with children in 2011

44.5% of census ffaamilies who were couples without children in 2011

More than 60% of children born in Quebec are to parents who are not legally married