Important Judgment from the Ontario Court of Justice: Unmarried couples may be entitled to spousal immunity

In the case of R. v Lomond, a criminal case involving a bunch of driving offences, Crown counsel — the lawyer for the government who prosecutes criminal offences — sought to call the accused person's unmarried spouse as a witness, raising the issue of spousal immunity and whether it applied to people in unmarried relationships.

Spousal immunity is a principle of the common law which says that married spouses can't be forced to testify against each other in criminal proceedings, and is intended to protect and promote trusting spousal relationships. This principle has been overruled to some extent by s. 4 of the Canada Evidence Act, the legislation that applies in criminal proceedings. Under this section the Crown can require spouses to testify for the purposes of certain, specified offences, but otherwise:

"No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage."

You can see the problem. The immunity provided by the Canada Evidence Act and the common law rule applies only to "husbands" and "wives," and unmarried couples, regardless of how long they've lived together aren't "husbands" or "wives." As a result, the court had to decide firstly whether the nature of the couple's relationship was "common law" and, if so, whether the common law rule which prohibits the Crown from requiring accused person's spouses from giving evidence should apply to people in unmarried, "common law" relationships.

(I will pause here to again say that the term "common law marriage" in the context of these relationships is incorrect and misleading. There was such a thing once upon a time — a couple could be legally married, without marriage licences from the state or the blessing of a priest, by meeting in public before witnesses and promising to live together and be faithful to one another — but various Marriage Acts have long since repealed this form of marriage. Although the federal government persists in using the term "common-law partner" in its legislation, there is no such thing under the law. In fact, most of the time what matters is whether a couple fits a particular law's definition of "spouse," which makes the status of a relationship a statutory issue not a common law issue. The Family Law Act, for example, defines "spouse" as including married couples as well as couples who have lived together in a marriage-like relationship for at least two years.)

Thankfully, there are a boatload of cases that cover the issue of whether a particular romantic relationship is spousal or not in the absence of a legal marriage. The court drew from an old Supreme Court of Canada case about unmarried spouse's entitlement to statutory benefits to describe the factors that tend to show that a particular relationship is a spousal ("common law") relationship:

• whether or not the persons have a conjugal relationship;
• the degree of exclusivity of the relationship;
• the conduct and habits of the persons in respect of household activities and living arrangements;
• the degree to which the persons hold themselves out to others as an economic and domestic unity;
• the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;
• the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;
• the degree of financial dependence or interdependence and any arrangements for financial support between the persons;
• the care and support of children; and,
• the ownership, use and acquisition of property.

Applying these factors, and a few others I haven't mentioned, the judge concluded that the accused and his partner were in fact in a spousal ("common law") relationship. On the question of whether this should result in the extension of spousal immunity, the court held (cites omitted, emphasis in original):

"[25] ... I find that the common-law rule is inconsistent with modern Charter values and an appropriate remedy would be to extend the non-compellability aspect of this to common-law couples. In doing so, I am persuaded by the analysis of the Alberta Court of Appeal in [R. v Legge] on the issue of interpreting the common-law in a manner consistent with the Charter. Paperny J.A. on behalf of the unanimous court wrote:

[35] Canadian courts have long applied and developed common law principles in a manner consistent with the values enshrined in the Charter ...  

[36] In [R. v Salituro], Iacobucci J. commented on the development of the common-law to comply with Charter values in the context of an exception to the spousal immunity rule (at para 37):

These cases reflect the flexible approach that this court has taken to the development of the common law. Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

[37] At paras 48-49 he went on to say:

The Charter has played and will continue to pay a central role in defining the legal and social fabric of this country. As the Charter is the supreme law of Canada, any legislation or government action or law inconsistent with it is, to the extent of the inconsistency, of no force or effect. But the Charter will also be influential even in the absence of legislation or government action... Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed...

"[26] I find the analysis of Paperny J.A. apt in the particular circumstances of this case. [The partner] and the Defendant are in a committed, long term relationship akin to marriage. The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage. I find that it is both just and appropriate to extend the immunity rule to make common-law spouses in committed relationships akin to marriage non-compellable witnesses for the Crown. Put differently, [the partner] cannot be compelled to testify for the prosecution in this case, but I make no finding with respect to her compellability at the request of the Defence. ...

"[32] Having considered the narrow issue before me and the corresponding authorities on point ...  I find that an appropriate remedy would be a common-law remedy which addresses the current nature of the common-law rule as it pertains to common-law couples. These reasons do not purport to read in language to the [Canada Evidence Act] or expand the definition of husband and wife to include common-law spouses as envisioned by s. 4 of the [Canada Evidence Act]. ..."

And there you go. The courts of Canada can and should use Charter values to adapt the principles of the common law where the rationale underlying the common law is inconsistent with the Charter, and in this case the result was the extension of the common law principle of spousal immunity to unmarried ("common law") spouses.

Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act

The recent Supreme Court case of Bressette v. Henderson involved a couple in an unmarried spousal relationship from 2004 to 2012 and a claim for the division of property. This facts of this case raise two problems that many lawyers have had to grapple with since the Family Law Act came into force on 18 March 2013:

1. Do the property provisions of the new act apply to unmarried spouses who separated before 18 March 2013?
2. Can a unmarried spouse who started a claim before 18 March 2013 amend her claim after that date to claim under the new act?

The first question is of critical importance as unmarried couples — spouses or not — were not entitled to an automatic interest in family assets under the old Family Relations Act and could only make claims to property held in just one person's name under the common law of trusts, which was complex and rarely yielded results close to what the couple would have had if they had been married.

Under s. 94 of the Family Law Act, however, spouses may apply for an order dividing property and debt. Section 3 defines "spouse" as including people who have lived in a marriage-like relationship for at least two years and people who used to be spouses. Section 198 says that an unmarried spouse must make a claim within two years of the date of separation. As a result, it would seem that if you meet the definition of spouse at s. 3 and you are within the time limit of s. 198, you may make a claim for the division of property under the new act.

The issue then narrows to this: if a new law gives you a right to make a claim against someone in certain certain circumstances, can you make that claim even though the circumstances occurred before the law came into effect? Think of it like this. Say a brand new law says that you can sue someone for reading your email. If the new law comes into effect in August, can you sue someone for reading your email in July?

Some of the answers lie in the provincial Interpretation Act. Section 4 of that act says that an act must be read as "commencing at the beginning of the day on which it comes into force." Section 3 says that if a new act says that it is meant to apply before it comes into force, then when the act comes into force it is retroactive to the date specified in the act. In other words, an act starts on the day it comes into force and had no earlier effect unless it says it has that effect.

In the case of the law about reading email, the law creates a new cause of action (a reason to sue someone) that didn't exist in July when the misconduct occurred. Unless the new act says that people can sue for instances of email-reading occurring earlier than August, you wouldn't be able to sue the person for reading your email in July.

The subtle difference about the Family Law Act is that the new cause of action it provides (unmarried spouses' right to sue for a share of family property) took effect on 18 March 2013 when the law came into effect, without any retroactive effect, but the definition of "spouse" captured people who were in a qualifying relationship on and after 18 March 2011. Let me put it another way. On 17 March 2013, an unmarried spouse couldn't sue for a share of the family assets, but on 18 March 2013 she could sue for a share of the family property, because that's when the new law came into effect along with its new definition of spouse and its new cause of action. However, the effect of the definition also captures unmarried spouses who were separated on or before 18 March 2013 and as a result, someone who met the definition of spouse on 18 March 2013 gained a new cause of action on that date, and the new act does not actually have a retroactive effect.

The second question is a bit different. If you started a court proceeding prior to 18 March 2013, can you change that claims you're making to include the new cause of action? Frankly, I don't see why not. Some might say "but that law never applied during our relationship," but that doesn't really matter; the government changed the law and if you're going to court that's the law that the court must apply, whether you meant it to or not. Others might say "but that wasn't the law when you started your claim," and that's the better argument. The idea here is that when you start a court proceeding against someone, the claim that you file in court sets out the full claim you are making and crystallizes the legal issues between the claimant and the respondent. However, the rules of the Supreme Court, say that you can change your claim as long as you do it a certain number of days before trial, and the reasons why people usually change their claims is to remove a legal issue or to add a legal issue, and so I'm not sure that this would get you anywhere.

As a result, I can't see why an unmarried spouse who starts a court proceeding before 18 March 2013 couldn't amend his or her claim to claim under the new act. The only restriction I can see is that the person would probably need to qualify as a "spouse" at the time the amendment is made.

By now you're probably asking why I've spent so much time babbling about my views on things when I started off talking about a case. The answer is that these questions were raised in the case:

"[120] The respondent argues that the FLA cannot possibly apply, given that the entire course of the parties' relationship was over before the new regime came into effect. The claimant says that it does apply."

However, the issues was not fully argued and, recognizing the significance of a decision on this point of law, the court commented that

"[131] I am concerned about deciding the issue of the applicability of the FLA in the absence of full legal argument."

and ultimately declined to do so. Her are Her Ladyship's helpful observations in this regard:

"[133] I have concluded that applying the 'significantly unfair' test [to unequally divided family property] in the unique circumstances of this case would lead me to the same conclusions I have reached with respect to the claimant's common‑law claim based on unjust enrichment. In other words, even if the FLA were to apply in this case, it would not change the result that I would reached based on the unjust enrichment cause of action.  

"[134] The unjust enrichment legal cause of action is based on fairness, or equity, and as such is intended to be flexible and to take into account the many varieties of relationships that may exist. An important factor running throughout the authorities in determining whether or not there has been unjust enrichment is the legitimate expectations of the parties. Here, if the FLA was applicable to these parties, it would be 'significantly unfair' to reach a different result than that based on the unjust enrichment remedy, given that the common‑law remedy is based on fairness and the legitimate expectations of the parties. Here the parties never considered or expected that there would be a new statutory regime applicable to the relationship during the course of the relationship. ... 

"[137] The fact is that neither party had the option of changing the relationship or reaching an agreement that would take into account the new statutory regime, the FLA, because their relationship had run its course before the new regime was brought into force. 

"[138] In addition to the above reasons, other factors I would consider under the FLA in reaching the conclusion that equal division of all family property would be significantly unfair would include the same factors I have considered in determining the unjust enrichment claim which I will now address, including: the duration of the relationship; the parties' intentions and expectations during the relationship; and the parties' respective direct and indirect contributions to the acquisition of property during the relationship."

This case is of primary utility, I think, for its concise summary of the law on trust claims to property and overview of the property provisions of the Family Law Act. It may also be useful for the court's conclusions on what constitutes "significant unfairness" under s. 95 of the act, however I would be hesitate to place too much emphasis on this aspect of the decision given the court's position on the application of the act.

My thanks to my former colleague, Thomas Wallwork, for bringing this interesting case to my attention.

Trio Tie the Knot in Brazil

CNN reports that a public notary in Brazil has "set off a firestorm" by granting a civil union registration to a trio composed of one man and two women. According to the article, the three live together and love one another like persons in any other cohabiting relationship, and granting the registration will give the trio the legal benefits of marriage and recognition as a family unit.

This raises of course, a question that has been waiting to be raised in British Columbia for some time now. The Family Relations Act defines "spouse" as including married spouses and persons for have "lived with another person in a marriage-like relationship for a period of at least 2 years." Nothing in this definition says that you can't be living with more than one person in a marriage-like relationship, although I think you would have to read the definition as establishing separate spousal relationships among the parties to the relationship. In other words, A would be in a spousal relationship with B while simultaneously being a spousal relationship with C, and B and C would have a spousal relationship of their own. The definition of spouse in the Family Law Act also allows for this eventuality.

The point, of course, is that being in a spousal relationship provides certain legal entitlements that arise on the breakdown of that relationship. Under the Family Relations Act these involve spousal support and obligations in respect of stepchildren. Under the Family Law Act, unmarried spouses will also be entitled to share in family property.

My thanks to my friend and colleague Agnes Huang for sharing the CNN article with me.