Unmarried Spouses

The provincial Family Law Act defines spouse as including married spouses and unmarried couples, provided that the unmarried couple has lived together in a "marriage-like relationship" for at least two years, or lived together for less than two years if they have had a child. Because the federal Divorce Act only applies to married spouses, all of the rules that apply when unmarried relationships end are found in the Family Law Act.

This section talks about qualifying as unmarried spouses, the consequences of being in a spousal relationship, and unmarried spouses' entitlement to government benefits. This section also talks about the legal issues involved when a relationship breaks down.

Introduction

The legal rights and responsibilities people in an unmarried relationship owe to each other are described in a number of different laws, and these different laws have different definitions of what it means to be a "spouse" or a "common-law partner"; a couple might meet the test under one law but not under another.

The really important question is this: Do I qualify as a "spouse" under this particular piece of legislation?

Although married couples are always married spouses, unmarried couples aren't always unmarried spouses. For example, the federal Income Tax Act defines spouse as including people who have cohabited for one year, while the provincial Employment and Assistance Act defines spouse as including people living together for three months if a welfare caseworker believes that their relationship demonstrates "financial dependence or interdependence, and social and familial interdependence."

Regardless of a couple's federal or provincial status under these rules, it is not true that being an unmarried spouse or common-law partner means that you are legally married. Being married involves a formal ceremony and certain other legal requirements like a marriage licence. Without that ceremony and that licence, unmarried spouses will never be married, no matter how long they've lived together.

Provincial legislation

For most provincial laws, the test is whether or not a particular couple are "spouses." Qualifying as a spouse might mean that you are entitled to the family rate for MSP, that you can share in your spouse's estate in the event your spouse dies, or that you are no longer entitled to social assistance.

In general, for most but not all provincial laws you must have lived with your partner for at least two years to qualify as a spouse. (The laws about sharing in a spouse's property after his or her death also require the spouses to have been living together at the time of your spouse's death.) Here's the definition from the Wills Variation Act:

"spouse" means a person who

(a) is married to another person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.

Here's the definition from s. 3 of the Family Law Act:

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 and 6, has a child with the other person.

(2) A spouse includes a former spouse.

And here's the definition from the Adult Guardianship Act:

"spouse" means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act, from the other person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender.

As you can see, there are lots of subtle differences between these definitions, and can be very important to find out just how a particular law defines spouse.

Federal legislation

Most federal laws distinguish between "spouses," people who are legally married, and "common-law partners," who aren't. Qualifying as a common-law partner might mean that you are entitled to a share of your partner's CPP credits, and receive Old Age Security survivor's benefits or the spouse amount for the GST Credit.

In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from the Old Age Security Act:

"common-law partner", in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.

Here's the definition from the Income Tax Act:

"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and

(a) has so cohabited throughout the 12-month period that ends at that time, or

(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (3) and subparagraph 252(2)(a)(iii),

and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of least 90 days that includes the particular time because of a breakdown of their conjugal relationship.

"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship."

"Common-law spouses"

Family law in British Columbia doesn't talk about people who are "common-law spouses" and never has. Once upon a time, people could marry each other and create a legal relationship simply by agreeing to marry, without getting a licence from the government or having a particular kind of ceremony. Because the rights between the spouses came from principles established by the common law, these were known as common-law marriages. Common-law marriages were valid in England until the Marriage Act of 1753, better known by its full flowery name, An Act for the Better Preventing of Clandestine Marriage.

Normally I wouldn't make a fuss about terminology like this, except that the phrase "common-law spouses" kind of suggests that there are certain rights and entitlements that a couple get from the operation of the common law, and this really isn't the case and it hasn't been the case for two-and-a-half centuries. What's really important is whether a couple are "spouses" under the particular law that they're looking at; all of their rights and entitlements come from the operation of a statute.

There is no such thing as a "common-law spouse" or a "common-law marriage" in British Columbia. If you're a "spouse," it's because of s. 3 of the Family Law Act.

Qualifying as an unmarried spouse

It's usually pretty hard to argue that you're not married if you're a married spouse. It's a lot easier for unmarried couples to argue about the status of their relationship, and the stakes can be quite high. If a couple were just roommates, for example, neither of them will be able to ask for a share of the family property or for a contribution to the family debt, and neither will be able to ask the other to pay spousal support.

Living together

This requirement of an unmarried spousal relationship is fairly self-explanatory. An unmarried couple who have lived together and had a child together are spouses who are eligible to ask for spousal support, regardless of how long or how short a period of time they lived together. An unmarried couple who have lived together for at least two years are spouses who are eligible to ask for spousal support and orders about the division of property and debt.

The only thing that needs to be pointed out is that the two-year period doesn't need to be continuous. On the other hand, if a claim is based on the parties being unmarried spouses, the court will probably look at the nature of the relationship in more detail. A gap of three months in the middle of the two years a couple are supposed to have lived together might prevent someone from claiming that a couple are spouses; on the other hand, if the three months' absence was because someone was working out-of-town, the three months may not matter very much.

In a "marriage-like relationship"

This is more complex than the calculation of the duration of a relationship, partly because it calls for the court to make a decision about the nature of the parties' private, personal relationship with one another. In a 1998 case called Takacs v. Gallo, 1998 CanLII 6428 (BCCA) the Court of Appeal endorsed these considerations:

• Shelter:

Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?

• Sexual and Personal Behaviour:

Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings towards each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?

• Services:

What was the conduct and habit of the parties in relation to the preparation of meals, washing and mending clothes, shopping, household maintenance, and other domestic services?

• Social:

Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties? What was the attitude and conduct of the community toward each of them and as a couple?

• Economic Support:

What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them that both agreed would be determinant of their overall relationship?

• Children:

What was the attitude and conduct of the parties concerning children?

In a nutshell, where the "marriage-like" quality of a relationship is disputed, the court will enquire as to how the couple represented themselves to their family and friends, and as to the nature of their financial relationship and household relationship. Did the couple present themselves as a family unit and conduct their personal affairs as a family unit? The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, Yakiwchuk v. Oaks, 2003 SKQB 124, expressed the difficulty of determining what is and what is not a "marriage-like" relationship this way:

"Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property — in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important — for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their 'spouse' by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some 'spouses' do everything together — others do nothing together. Some 'spouses' vacation together and some spend their holidays apart. Some 'spouses' have children — others do not. It is this variation in the way human beings structure their relationships that make the determination of when a 'spousal relationship' exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist."

To be clear though, mere roommates will never qualify as unmarried spouses. There needs to be some other dimension to the relationship indicative of a committment between the parties and their shared belief that they are in a special relationship with each other.

Time limits

While a claim for child support with respect to a child of the parties will remain open until the child reaches the age of 19, and possibly longer, there are three important things you need to know about claims for spousal support and claims for child support against stepparents:

• A claim for child support against a spouse who is stepparent must be brought within one year of the stepparent's last contribution to the support of the child, and cannot be brought until after the spouses have separated.
• An unmarried spouse must bring a claim for spousal support within two years of the date of separation.
• An unmarried spouse must bring a claim for the division of property and debt within two years of the date of separation.

Bringing a claim means starting a court proceeding asking for a particular order, not the date when the first application is made in that proceeding.

The date of separation is the date when the "marriage-like" quality of an unmarried relationship ends. As a result, the "marriage-like" quality of a relationship can terminate before a couple physically separates, and the time limits will usually begin to run from that date rather than the date someone moves out.

Effect of dispute resolution processes

Under s. 198(5) of the Family Law Act, the running of the time limits is "is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." The purpose of this provision is to allow people to engage in dispute resolution without having to feel pressured into starting a court proceeding to stop a time limit from running out. However, this provision isn't a straightforward as it looks.

First, the parties have to be engaged in a process of family dispute resolution. That term is defined in s. 1 of the act as including:

• the services of a Family Justice Counsellor,
• mediation,
• collaborative settlement processes, and
• arbitration.

You'll notice that negotiation isn't on this list. As well, under the Family Law Act Regulation, a process of mediation and arbitration requires the execution of a mediation agreement or an arbitration agreement to count as mediation or arbitration.

Second, the parties have to be engaged in one of these processes with a family dispute resolution professional. This term is defined in s. 1 of the act as including:

• Family Justice Counsellors,
• lawyers,
• mediators who meet the training requirements set out in the Family Law Act Regulation, and
• arbitrators who meet the training requirements set out in the Family Law Act Regulation.

In other words, being engaged in a family dispute resolution process with someone like a community leader, an elder, a senior family member, a priest, an imam or a rabbi won't cut it unless the person also happens to fit into the definition of family dispute resolution professional.

Third, the parties must be engaged in the family dispute resolution process. That implies a process that is continuing and underway, rather than one which is started but never followed-through with.

Effect of attempts to reconcile

The Divorce Act talks about how the one year period a married couple must wait in order to get divorced on the basis of separation is not interrupted if the parties live together in an attempt to reconcile for less than ninety days. Similar language is used in the Family Law Act for the purpose of determining the date when a couple stops accumulating family property. Neither of these provisions apply to the two year time limit for bringing claims under the Family Law Act.

Rights and responsibilities of unmarried spouses

Providing a couple qualify as spouses, either party is entitled to seek an order for spousal support under the Family Law Act or to ask for an order that a stepparent pay child support for the benefit of the child of a spouse. The rules that apply to an unmarried spouse's claim for spousal support or for child support from a stepparent are exactly the same as those that apply to married spouses.

An unmarried couple who have lived together for at least two years can also ask for an order about the division of property and debt. The rules that apply to an unmarried spouse's claim for the division of property and debt are exactly the same as those that apply to married spouses.

If an unmarried couple has had a child together, they are parents who are entitled, just because they are parents, to ask for orders about the care of the child and for child support. The rules that apply to determine guardianship, the distribution of parenting arrangements and contact are exactly the same as they are for any other parents, including parents who are married.

Government benefits

The fact that a couple live together may entitle one or both of them to certain benefits paid by the federal or provincial government if they also qualify as spouses under the applicable rules and legislation. It can also expose them to the prospect of losing those benefits, most notably social assistance payments.

Social assistance

The ministry which administers the Employment and Assistance Act and is responsible for social assistance often treats anyone living together as a couple as being in a spousal relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under what's known as the spouse in the house rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually return to treating you as single.

Employment Insurance

EI applies the same standards to unmarried spouses as it does to married spouses.

Canada Pension Plan

Unmarried spouses may share in each other's accumulated CPP credits, however this sharing is not automatic. You must apply to equalize your CPP credits with your spouse's CPP credits.

There may be positive income tax consequences if you elect to share a CPP pension that is being paid out. You will be eligible to share your pension if you have been living together as a couple for at least one year and you are both at least 60 years old.

Old Age Security Pension

The Old Age Security Pension is available to people who are at least 65 years old. You may be entitled to receive the amount for a couple rather than for two single people if you have been living together as a couple for at least one year.

MSP and medical and dental benefits

The Medical Services Plan will cover your partner on your plan without any minimum limit on the length of time you've been living together, although you must have signed your partner up on the plan and must pay the family rate rather than the single rate.

If you or your partner receive any workplace medical or dental insurance coverage, check with the plan administrator to see if unmarried couples are eligible beneficiaries under your plan.

ICBC death benefits

A surviving unmarried spouse can apply to receive death benefits from ICBC when the other spouse is killed in a car accident, regardless of whose fault the accident was.

The section Separating Emotionally in the chapter Divorce & Separation talks about the emotional issues that come up when a relationship ends and how those issues can impact on the resolution of the legal issues.

Page resources and links

Legislation

• Family Law Act
• Divorce Act
• Income Tax Act
• Wills Variation Act
• Adult Guardianship Act
• Old Age Security Act]
• Employment and Assistance Act
• Canada Pension Plan

Links

• Legal Services Society's Family Law Website: Property issues and common-law relationships
• Canada Pension Plan Survivor's Pension
• Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together