1. Introduction

In Ontario, there is no set definition for what it means to be “common law”. Whether you and your significant other are considered to be in a common law relationship depends on the statute at hand. In this article, we will examine the applicable provisions in the Family Law Act and the Succession Law Reform Act. We will also look at how the rights differ between common law and married couples.

2. Family Law Act

According to section 1(1) of the Family Law Act, a spouse is somebody who is married. When a married couple divorces or the spouses separate, the spouse with less assets is entitled to an equalization of net family properties, which is a method of dividing assets between two married individuals. A common law partner, on the other hand, is not entitled to an equalization of net family properties when the relationship ends.

There is also a difference in rights between a married spouse and a common law partner with respect to a matrimonial home. A matrimonial home is defined in section 18(1) of the Act as a property “in which a person has an interest and that is…ordinarily occupied by the person and his or her spouse as their family residence.” Under the Family Law Act, a married spouse cannot sell or mortgage the matrimonial home without their spouse’s consent. Furthermore, both spouses have an equal right to live in the matrimonial home, even if one spouse is not on title to the property. These provisions do not apply to common law relationships.

However, individuals living common law can be entitled to spousal support. The definition of “spouse” under section 29 includes two people who are not married to each other, but who have cohabited continuously for at least three years. The amount of spousal support payable to the common law partner depends on a variety of factors and the court will take into account all the circumstances of the parties when making a determination.

3. Succession Law Reform Act

Section 1(1) of the Succession Law Reform Act states that the definition of “spouse” is the same as that under the Family Law Act. Where a married individual dies without a will (intestate), the intestacy laws allow their spouse to inherit part or all of the deceased’s property. Since these laws do not apply to common law couples, the survivor is not entitled to any part of their partner’s estate upon his or her death.

However, as with the Family Law Act, it is possible for the common law partner to apply to the court for support. Under Part V of the Succession Law Reform Act, a “dependant” includes common law partners, as long as they cohabited continuously with the deceased for at least three years. If the Court finds it appropriate, it can order that payments be made from the deceased’s estate to support the common law partner.

4. Conclusion

In conclusion, a single legal definition for “common law” does not exist. The requirements that must be met in order to be considered common law will vary from statute to statute. Therefore, if you are in a common law relationship, it is important to be aware that any rights you may have with respect to family and estate matters will based on whether or not you meet the definition of a spouse in the relevant laws.

References

1. RSO 1990, c F.3 [FLA].
2. RSO 1990, c S.26 [SLRA].
3. FLA, supra note 1, s 1(1).
4. Ibid, s.5.
5. Ibid, s 18(1).
6. Ibid, s 21.
7. Ibid, s 19.
8. Ibid, s 30.
9. Ibid, s 29.
10. Ibid, 33(9).
11. SLRA, supra note 2, s 1(1).
12. Ibid, s 57(1).
13. Ibid, s 58(1).

1. Introduction

When married couples make their wills, they often leave all of their property to their spouse upon death. What happens if both the husband and wife die in an accident and the order of the deaths cannot be determined? How does this affect the distribution of their estates? In these “simultaneous death” cases, a common disaster clause, if present in the couple’s wills, and the Ontario succession laws dictate how the estates are to be distributed.

2. Common Disaster Clauses

A common disaster clause specifies that one’s spouse will inherit everything if he or she outlives the testator (i.e., the will maker) by at least 30 days.1 Otherwise, the inheritance goes to the other beneficiaries described in the will, such as the couple’s children.

The inclusion of such a clause in the will avoids any additional expense and delay associated with the distribution of the couple’s estates. Without the 30-day stipulation, the husband’s estate would first have to be transferred to his wife’s estate, and then to the surviving beneficiaries. The same thing would have to occur with the wife’s estate. This extra step complicates the transfer and increases costs. Therefore, ideally the will would include the 30-day stipulation so that the couple’s estates can go directly to their beneficiaries.

3. Succession Law Reform Act

In a simultaneous death situation where the couple does not have valid wills or their wills do not contain common disaster clauses, the Succession Law Reform Act (SLRA)2 sets out certain rules that direct the distribution of the estate. Section 55(1) states that “[w]here two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person, or any property of which he or she is competent to dispose, shall be disposed of as if he or she had survived the other or others.”3 In other words, where two individuals die at the same time, for the purposes of estate distribution each person is assumed to have outlived the other. Therefore, when the executor distributes the husband’s estate, it is presumed that his wife has predeceased him and his assets go directly to his beneficiaries. When the executor distributes the wife’s estate, the husband is deemed to have predeceased her so her assets also go directly to her beneficiaries.

Section 55(2) clarifies how jointly held property is to be dealt with in such situations. When property is held by two people as joint tenants there exists a right of survivorship, which means that if one joint tenant dies, the survivor automatically becomes the sole owner of the property. Therefore, joint tenants are unable to pass on their interest in the property through a will. Section 55(2) acts to rectify this issue, as it states: “Unless a contrary intention appears, where two or more persons hold legal or equitable title to property as joint tenants, or with respect to a joint account, with each other, and all of them die at the same time or in circumstances rendering it uncertain which of them survived the other or others, each person shall be deemed, for the purposes of subsection (1), to have held as tenant in common with the other or with each of the others in that property.”4 This subsection effectively severs the joint tenancy and deems each person to have held that property as tenants in common. No right of survivorship exists with a tenancy in common, meaning that each spouse’s interest in the property becomes an estate asset that can be distributed according to their will or the succession laws.

4. Conclusion

To summarize, when a simultaneous death occurs, a common disaster clause in a valid will can help avoid additional costs and delays in administering the couple’s estates as it distributes the assets directly to the alternate beneficiaries. Similarly, where a will does not exist or the will is invalid, the SLRA provides that each spouse is deemed to have outlived the other to achieve the same outcome as a common disaster clause. If there is any property held by the couple as joint tenants, for the purposes of estate distribution they are deemed to have held the property as tenants in common so that each spouse’s interest is treated as an estate asset.

References

1. Dollar, SL. Advisor notes [Internet]. 2004 [updated 2014 August; cited 2017 Aug 11]. Available from: https://www.sunnet.sunlife.com/files/advisor/english/PDF/advisor_notes_legal_Common_disaster_confusion.pdf
2. Succession Law Reform Act 1990 (ON).
3. Succession Law Reform Act 1990 (ON) s 55(1).
4. Succession Law Reform Act 1990 (ON) s 55(2).