A surprising court decision in Quebec has opened doors for common-law couples hoping to receive spousal support from their ex-common-law spouses upon separation.
The court ruled that Quebec law discriminates against common law couples by not entitling them to spousal support. The case in question involved a woman who was cohabitating with a multimillionaire. The couple had three children and the man was already paying $35,000 per month in child support.
In Ontario, spousal support for common-law couples may be available depending on certain circumstances, including whether there are children involved and how long the couple was living together. Quebec is the only Canadian province that does distinguish between married and common-law couples for spousal support reasons. Quebec is the common-law capital of Canada, and it makes sense for a landmark common-law marriage court decision to take place there, particularly as one in three couples are common law.
The Quebec Court of Appeal has given the government of Quebec one year to review its position on common-law spousal support.
A recent study conducted by the Vanier Institute of Family has shown that people in Canada are “freer than they once were to establish the kinds of family arrangements that best suit them.”
According to the study, which is released approximately every five years, more people are staying in common law marriages rather than getting legally married and are having fewer children than decades ago. For example, in 2008 Canadians gave birth to 360,000 children, a 25 per cent drop from 1959 when Canadians gave birth to 479,000 children. In 1991, 50 per cent of couples with children were legally married, while today that number is only 38 per cent – the same percentage of legal marriages in Canada that end in divorce. Married families without children and common law couples without children, when combined, match the number of those legally married with children.
“Today’s families are smaller. Adults wait longer to marry if they do so at all. Common law unions are no longer just a preliminary or trial stage before marriage but, for many, an alternative to marriage,” said the study. “On average, Canadians wait longer than did their parents or grandparents to have children. They are more likely to separate or divorce. In less than a lifetime, the dual-earner family has gone from an exception to the norm, and a growing number of women are primary income earners within their families,” it said.
In the 1970s, men and women who chose to tie the knot were about 25 and 23, respectively. Today, they’re 30 and 28, five years older on average. Numbers of blended families with step-parents, step-children, same-sex-parents or just families of couples alone are also on the increase.
These changes in family structure and general Canadian lifestyles make it very apparent that there are a number of changes that need to be made – both in law and public programs – that support these ever-changing families through various family law-related challenges.
It’s becoming a well-known fact that in the province of Ontario, division of property rights don’t extend to common law couples. This may change one day, and British Columbia already has plans in motion to change it, but for now it remains the biggest difference between legal and common law marriage in Ontario. For example, if a spouse entered into a common law marriage with a home in their name, the other spouse wouldn’t have any rights toward the home or its sale upon splitting up.
A recent case highlights this key difference as an Ontario couple who only underwent a religious marriage ceremony failed to obtain a civil marriage license.
Many people undergo religious marriage ceremonies under various religious laws. There are ceremonies under Canon (Christian) law and Halakha (Jewish) law, as well as Hindu law, Sikh law and many other faith-based laws. In the case of this couple, Sharia (Islamic) law. In most of these weddings, a civil marriage license is still obtained and the paperwork is often incorporated into the religious ceremony by the couple and the officiant. With this particular couple, no marriage license was obtained in Ontario.
Unfortunately for this couple, upon their separation the wife did not have a claim to the condominium that her husband entered into the marriage with, because the relationship under the law was a common-law marriage and the condominium could not be considered a matrimonial home without the civil license.
Couples who are married outside Canada who then immigrate to Ontario will have their marriage recognized as long as it is recognized in the country of marriage, but couples married in Ontario will not, unless they file the proper paper work.
On a side note: in some cases, couples may choose to have a religious ceremony on one date and then a legal ceremony on another date for whatever reason. Beware of letting months or even years lapse between the two ceremonies, as any assets accrued before the marriage is legal may not be subject to the division of property rights that legally married couples are entitled to.
The family law problems posed by modern life will soon have more clear-cut resolutions as British Columbia plans on tabling the new Family Law Act (the changes’ working title) during the first half of next year.
The 30-year-old Family Relations Act in British Columbia, which is the province’s version of the Ontario Family Law Act, is set to be completely overhauled with new rights for common-law couples and new custody rules to for today’s non-nuclear families.
Separating couples’ time with their children won’t be called access or custody anymore, but “parenting time” or “guardianship”. Families who are constantly in volatile disputes where children are involved will have parenting coordinators that will have the authority to act as an arbitrator, and children conceived by an egg or sperm after the donor parent dies will be seen in the eyes of the law equal to any other child by that particular pairing.
In addition, ex-spouses who act inappropriately can be given conduct orders that result in jail time and fines.
British Columbia’s government consulted with family lawyers, the Canadian Bar Association, as well as the public, in order to come up with the 172-page white paper.
Currently, Ontario does not have similar laws granting common-law couples property rights or custody laws that compare with those that British Columbia is proposing.
U.S. popstar Hillary Duff and Canadian NHL player Mike Comrie were married last week in a ceremony that took place in California. In 2007, Forbes magazine estimated Duff’s earnings for the year at $12 million, and not only did Comrie make an NHL paycheck (he’s a free agent this year), his father is the co-founder of The Brick and his family’s fortune is an estimated $500 million. It has been reported that prior to their marriage, the couple signed a prenuptial agreement (known as a ‘marriage contract’ in Canada).
Some view a marriage contract as an “easy out” if a couple were to divorce, and that if two people were really in love they would not need a marriage contract. Contrary to this belief, few couples enter marriage thinking divorce is inevitable. Most couples who say, “’til death do us part,” mean it, never intending to become part of the 38 per cent divorce rate in Canada.
Divorce may be unplanned but it does occur. Therefore, couples should protect themselves, their finances and their assets by entering into a marriage contract. Initiating discussions about a marriage contract may be difficult however it is beneficial to a couple in the event of something unforeseen. A marriage contract is similar to buying life or car insurance, neither means that one intends to die or become injured, but it can protect you should it occur.
Marriage contracts are not just for the wealthy, there are many reasons to enter into such an agreement. Those who sign marriage contracts include couples marrying for a second time or are older couples marrying for the first time in life, both of which usually have built up assets to protect and may have children from previous relationships for whom they would want to preserve those assets.
Similar to the marriage contract for married couples, common-law couples can also protect themselves and enter into a cohabitation agreement.
British Columbia recently announced that the province is set to propose additional rights for common-law couples, and is also continuing to announce different amendments it plans to enact pursuant to its Family Relations Act.
Property and asset division rules for common-law couples were part of the major changes in B.C. These changes are necessary as there have been a growing number of couples that are choosing not to marry but to remain common-law relationships and, upon separation, if not on title, may not have any rights to the family property.
Other changes to the Act include the introduction of “parenting co-ordinators” during heated child custody cases. In addition, it will now be possible for a child to have more than two legal parents, which will be the first change of its kind in the whole country. This would be the case, for example, when a same-sex male couple has used a surrogate female to have a child and all three would be legal parents if they’re in agreement. The same could be said for a same-sex female couple and a male sperm donor, if all three are active parents of a child.
Spousal support will be able to continue after a paying ex-spouse’s death, if applicable.
Restraining orders available through the court would now be protection orders that are enforceable under the Criminal Code.
As well, parties intending to go to court over property and child custody disputes will need to first show an attempt to negotiate a settlement through the use of out-of-court methods such as mediation.
It’s been 30 years since British Columbia has made any changes to its Family Relations Act. The recent changes will update the Act to deal with the evolving family structure to include common-law couples, same-sex couples as well as surrogacy and sperm donors.
According to a number of Ontario lawyers and professional mediators, an increasing number Ontario residents are taking their family law cases to alternative dispute resolution, including mediation and collaborative law. Alternative dispute resolution is a cost-effective alternative to the cost of litigating a family law matter in court, which is no longer within means for most people.
Alternative dispute resolution also provides a quicker resolution to a family law matter than litigation and provides parties with an opportunity to be heard and the ability to control negotiations. Parties are able to come to agreements, as opposed to having a resolution forced upon at least one party by a judge.
In mediation, a third party with special training, such as a background in social work, will assist both parties in making decisions. Lawyers are usually retained by the parties for advice in these cases, while in arbitration an arbitrator will meet with the parties’ respective lawyers. In collaborative law, parties’ lawyers will work to finalize an agreement that is acceptable for both parties, although if issues cannot be resolved the lawyers cannot be retained for any future court proceedings.
In 1999, the Ontario Mandatory Mediation Program was introduced in Toronto, Ottawa and Windsor. Mediation is an option that must now be considered in civil disputes at those locations. Mandatory mediation was not extended to family law cases because in some instances, such as domestic violence cases, mediation may not be a possibility.
In addition to its cost-effectiveness, alternative dispute resolution also removes children of separated parents from any exposure to the court process, and it enables adults, who were once children of their parents’ long, drawn out divorces, to go through their own family law dispute without lengthy litigation.
In Ontario, an unmarried couple is considered to be in a common law marriage if they’ve lived together for over three years or have a child and live in a relationship of some kind of permanence. As such, when they break up they may be entitled to spousal support and a division of assets just as if the couple were legally married originally.
In Quebec, unmarried couples (even if they are common law) are not entitled to any such support.
The case of Eric and Lola, a billionaire and his ex-spouse, was heard last year in a Quebec court and a judge decided that only legally married spouses should be entitled to support in the event of a marriage breakdown. Their full names are not currently publishable due to a publication ban, but the media has dubbed them “Eric and Lola”.
The case is to be heard in the Quebec Court of Appeal this week, and should prove why not allowing spousal support for unmarried but conjugal couples is unconstitutional. Eric and Lola are also parents, and only a few years ago almost 60 per cent of children in Quebec were born to parents who weren’t married.
Without the appropriate spousal support in place for these two, as with any common-law parenting couple that breaks up, one parent may not be financially stable enough to provide for a child adequately.
Ontario couples are lucky, because the work, financial contributions and time that goes into a common law relationship is recognized by Ontario family law when the union breaks up. Hopefully, those in Quebec will soon be just as fairly treated.
Commencing March 1, 2010, the McGuinty government will be implementing major reforms to a variety of Family Law matters in Ontario. The reforms have been introduced with the objective of improving the public’s access to justice in family courts.
The following are some highlights of the changes that will take effect under the new legislation:
Full details of the upcoming reforms are still to be released by the government.
Check back to our blog for further details once the family law changes come into effect on March 1, 2010.
For further information on family law and divorce contact us at firstname.lastname@example.org or call us at 416 222 4555
The definition of a common law relationship in Ontario is that you have either lived with your significant other for three years or you are in some kind of permanent relationship together and have a child. There is no legal paperwork needed to establish a common-law relationship like in a marriage. Some provinces, like Ontario, require 3 years of continuous cohabitation, meaning a short-term breakup can sometimes ruin this continuity. Other provinces have no such requirements.
Couples who live together, or cohabitate, but are not married, whether heterosexual or same sex couples, are not included in the section of Ontario’s Family Law Act that states property accumulated during the marriage must be divided. For one person to make a claim for the division of property or to remain in the matrimonial home, they must be legally married to the person. Common law spouses can also be compelled to testify against each other in court, unlike married couples.
Cohabitation is defined by several factors in the eyes of a judge. Some of these factors include whether or not you were financially interdependent, whether or not you acted as a couple in social settings, whether or not your relationship was intimate, and whether or not you shared some kind of shelter or home.
Common law partners are able to apply for spousal support in the case of the dissolution of the partnership just like a married person. While there is now no set time limit to apply in Ontario (it used to be two years) in other provinces there are limits.
A cohabitation agreement can help protect both parties in a common law situation. It can help prevent litigation and extra costs in the event of the breakdown of the relationship while protecting your assets and setting aside rules for future child support engagements.