When couples are in a common-law relationship and one of the common law spouses dies, the Succession Law Reform Act authorizes the surviving spouse to commence a claim for support against the estate of the deceased spouse.

For the purposes of the legislation, common law spouses are defined as two persons who were not married to each other and have cohabited (a) continuously for a period of no less than three years, or (b) in a relationship of some permanence, if they are the parents of a child.

Because human beings are complex and our complexity is reflected in the differing variety of our relationships with each other, the courts have taken a very broad approach in considering the factors relevant to determining whether parties were in a common-law relationship.

The courts have determined that “cohabit” is not synonymous with “co-residence” and have determined in previous cases that common-law spouses were cohabiting although not necessarily living under the same roof.

The factors the courts have often examined include: the common law spouses’ sexual relationship and personal connection; the nature of domestic services each provided within the relationship; how the common law spouses presented their relationship to society at large; financial support; children; financial and estate planning.

The determination of a finding of cohabitation must involve an intention by both common law spouses to share familial responsibilities.

Each case will be determined on its particular facts and this approach recognizes the social diversity existing in today’s world.

– Barrie Hayes