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).

BACKGROUND

1. Definitions

Reserve:

The Indian Act, 1876 (“Indian Act”) defines a reserve as “any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, mineral, metals, or other valuables thereon or therein.”1

2. Reserves are Unique

According to the Department of Indigenous and Northern Affairs Canada, reserves differ from other land in that:2

1. The Crown holds legal title to reserve lands;
2. Aboriginals have a recognized interest in reserve lands. They have the right to exclusive use and occupation;
3. Reserve lands cannot be mortgaged or pledged to non-Aboriginals; and
4. Most land transactions must be approved by the Minister as per the Indian Act.

INTERESTS IN RESERVE LANDS

3. Individual Interests in Reserve Lands

Although the Crown holds legal title to reserve lands, the Indian Act allows individual members of an Aboriginal band to be given an allotment, which is the right to use and occupy an area of reserve land.1 Approval must first be obtained from the Band Council and the Minister of Aboriginal Affairs and Northern Development (the “Minister”), after which an individual will be considered to have lawful possession of the parcel of land.2

Non-Aboriginal individuals are not allowed to hold lawful possession of reserve lands, although they may enter into leases or acquire permits or licenses to obtain rights to use or occupy reserve land. The Band Council and the Minister must approve the leases, permits and licenses.2

4. Obtaining a Lien or Charge on Real Property Located on Reserve Land

According to section 66 of the Indian Act, “no person shall take any security or otherwise obtain any lien or charge, whether by mortgage, judgement or otherwise, upon real or personal property of any Indian or non-treaty Indian within Canada, except on real or personal property subject to taxation.” Real or personal property is subject to taxation if the property is located outside the reserve.1

Section 66 also stipulates however, that “any person selling any article to an Indian or non-treaty Indian may, notwithstanding this section, take security on such article for any part of the price thereof which may be unpaid.”1

References
1. Parliament of Canada. Chap. 18 – An Act to amend and consolidate the laws respecting Indians [Internet]. 1876 [cited 2016 Aug 22]. Available from: http://www.aadnc-aandc.gc.ca/eng/1100100010252/1100100010254
2. Government of Canada, Department of Indigenous and Northern Affairs Canada. Land management [Internet]. 2013 [cited 2016 Aug 22]. Available from: https://www.aadnc-aandc.gc.ca/eng/1100100034737/1100100034738

1. Introduction

On June 17, 2016, Bill C-14, the legislation on medical assistance in dying, received royal assent.1

2. Criteria for Medical Assistance in Dying (MAID)

In Canada, only physicians and nurse practitioners can legally provide MAID. There are two ways of providing this service:2,3

1) the physician or nurse practitioner directly administers a substance causing death

2) the physician or nurse practitioner gives or prescribes a self-administered drug that causes death

The following conditions must be met in order to be eligible for MAID.2,3 You must:

1) be eligible for government-funded health services

2) be at least 18 years of age and capable of making health-related decisions

3) have a grievous and irremediable medical condition

4) make a voluntary request for MAID which is free from external pressure or influence

5) provide informed consent to receive MAID. This involves obtaining information about your medical diagnosis, the types of treatment available and options to relieve suffering which includes palliative care

The definition of a grievous and irremediable medical condition as stated in Bill C-14 is as follows.3 You must:

1) have a serious and incurable illness, disease or disability

2) be in an advanced state of irreversible decline in capability

3) endure physical or psychological suffering as a result of your illness, disease, disability or state of decline that is intolerable and cannot be relieved under conditions you consider acceptable

4) be at a point where your natural death, taking into account all your medical circumstances, has become reasonably foreseeable. A prognosis does not necessarily have to be made with regards to the specific length of time you have remaining

Note that people with a mental illness are eligible for MAID as long as all of the conditions are met. However, you are not eligible for this service if any of the following applies:2

1) You suffer only from a mental illness

2) Death is not reasonably foreseeable, considering all of your medical circumstances

3) Your mental illness decreases your ability to make decisions regarding your health

At present, the federal government does not allow mature minors or those suffering only from mental illnesses to access MAID. Advance requests are also not accepted. However, the government will be studying these issues in more depth. Independent studies will be initiated within 180 days of the legislation being passed.1

3. Process for Requesting MAID

In order to request MAID, you must complete the following steps:2,3

1) Discuss end-of-life care options in relation to your medical condition and circumstances with your physician or nurse practitioner

2) Your physician or nurse practitioner must conclude that your medical condition is grievous and irremediable and they must ensure that you are eligible to receive MAID based on the criteria above

3) You must sign and date a written request for MAID

4) Your request must be signed and dated by 2 independent witnesses. An independent witness must be at least 18 years of age and understand the nature of the request for MAID. To be considered independent, the witnesses cannot:

• Benefit from your death
• Own or operate a health care facility where you live or are being treated
• Be directly involved in providing you with health care services or personal care

5) A second physician or nurse practitioner must provide a written second opinion that confirms your eligibility for MAID. He or she must be independent from the person providing the original assessment. Being independent means that neither of them:

• Mentors or supervises the other’s work
• Is knowingly benefitting from your death
• Is knowingly connected to the other or to you in a way which would affect their objectivity

6) There must be a minimum 10 day wait period between signing your request and when the service is provided. There may be an exception if:

• Your death is imminent
• Your capacity to provide informed consent will soon be lost

Note that you may rescind your request for MAID at any time and in any manner.

4. Guidelines for Physicians

When determining whether the patient has the capacity to consent to treatment, the physician must ensure that the patient can understand and appreciate the information relevant to making the decision and the reasonably foreseeable consequences of that decision. The patient must be able to understand and appreciate the history and prognosis of their medical condition, their treatment options and the risks and benefits of each one. When requesting MAID specifically, the patient must be able to understand and appreciate that the result of self-administering or having the physician administer the fatal dose of medication is death.4

In determining whether the patient has a grievous and irremediable medical condition, physicians are to use their professional judgement. Physicians may also opt to seek independent legal advice.4

To ensure that the patient is providing informed consent, physicians must review all treatment options with them. The federal legislation specifically requires that the patient be informed of the ways in which their suffering can be relieved, including palliative care. Consent to MAID must be given by an individual who is capable of making decisions and not by a substitute decision maker.4

Physicians who have a conscientious objection to providing MAID and who decline to do so are expected to provide the patient with an effective referral, meaning a referral to a “non-objecting, available and accessible physician, nurse practitioner or agency.” To allow the patient access to MAID, the referral must be made in a timely manner.4

If the first or the second physician decides that the patient does not meet the criteria, the patient is entitled to seek out another physician to request for MAID. That physician will assess them using the same criteria.4

For patients who have met all of the criteria, the physician must ensure that the patients are capable both at the time of the request for MAID and at the time they receive MAID. Just before providing MAID, the physician must give them the opportunity to withdraw their request.4

5. Legislation Facing Legal Challenges

On June 27, 2016, a 25 year old B.C. woman with spinal muscular atrophy and the British Columbia Civil Liberties Association launched a constitutional challenge against the federal government’s assisted-dying legislation. They argue that the legislation is unconstitutional because it deliberately excludes those who are suffering, but whose deaths are not reasonably foreseeable.5

Justice Minister Jody Wilson-Raybould has stated that the government “is aware of this potential challenge and will respond in the courts as appropriate.”5

References

1. Government of Canada, Department of Justice. Medical assistance in dying: Questions and answers [Internet]. 2016 [cited 2016 Jul 8]. Available from: http://www.justice.gc.ca/eng/cj-jp/ad-am/faq.html
2. Government of Canada. Medical assistance in dying [Internet]. 2016 [cited 2016 Jul 8]. Available from: http://healthycanadians.gc.ca/health-system-systeme-sante/services/palliative-pallatifs/medical-assistance-dying-aide-medicale-mourir-eng.php
3. Parliament of Canada. Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) [Internet].2016 [cited 2016 Jul 8]. Available from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=8384014
4. The College of Physicians and Surgeons of Ontario. Medical assistance in dying [Internet]. 2016 [cited 2016 Jul 8]. Available from: http://www.cpso.on.ca/Policies-Publications/Policy/Interim-Guidance-on-Physician-Assisted-Death
5. Laanela M. Assisted-dying legislation faces new legal challenge in B.C. CBC News [Internet]. 2016 Jun 27 [cited 2016 Jul 8]. Available from: http://www.cbc.ca