Canada’s common-law couple boom calls for estates action

Canada’s common-law couple boom must be matched by a wave of new estate plans if spouses want to be protected when their partners die.

Over the last few decades, common-law couples have gone from the fringes to the mainstream. While they accounted for just 6 per cent of spousal relationships in the early 1980s, a recent CBC News story reports that the figure has risen to 23 per cent, placing Canada ahead of all other G7 nations, including the U.K. – where 21 per cent of couples are living common law – and the U.S., where the proportion is 12 per cent.

For younger Canadians, the news outlet says that living common law is increasingly the norm, with the vast majority of those in long-term relationships in their 20s remaining unmarried. 

However, Ontarians among this growing population could be in for a nasty surprise if their spouses die without a will, since estates laws in this province offers no automatic entitlements to them, no matter how long they have been together.

Instead, common-law spouses must rely on the Succession Law Reform Act, which allows dependants of the deceased to make a claim against the estate if they are inadequately provided for in the will. The SLRA uses the same definition for “spouse” as the province’s Family Law Act, which deals with spousal support.

Things can get even more complicated when children are involved or if either party was married before – another increasingly common scenario in modern-day Canada, where blended family arrangements are no longer a novelty – since they elevate the risk of litigation between parties with competing claims over the estate.  

Proving your spousal status can also be an issue without a marriage certificate, as a woman recently learned when a B.C. court refused to recognize her as the spouse of a murdered playboy with a $21-million estate. 

Despite hearing evidence that the pair had a child, lived together at his parents’ house for periods, and referred to each other as “husband” and “wife,” the province’s Court of Appeal upheld a trial judge’s ruling that the deceased had terminated the relationship at least a year before he was killed by a former business partner during a dispute at his West Vancouver mansion. 

Whatever your individual circumstances, it’s important to find an experienced professional who can ask the right questions about your spousal situation, and ensure that everyone who needs to be is accounted for in a will.

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