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witnesses and promising to live together and be faithful to one another — but various Marriage Acts have long since repealed this form of marriage.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.

Rethinking Marriage: Beta marriages, renewable-term marriages and other interesting ideas

It will probably surprise no one to learn that the reason why marriage is presumed to be permanent in the Western world stems from the Catholic doctrine of the indissolubility of marriage, you know, from this line in the New Testament: "what god hath joined together, let no man put asunder." Canon law on the irrevocability of marriage was all well and good when our life spans topped out at 30 in the middle ages; surely if you'd be entitled to the McDonalds senior's coffee discount at age 25 you could manage a life-long commitment to someone. However, considering that life expectancy in Canada shot from 59 for men and 61 for women in 1920 to 79 and 83 respectively in 2007, the notion of a single, life-long relationship takes on a somewhat more ominous aspect.

Interestingly enough, despite our increasing longevity, our enthusiasm for marriage has not yet begun to wane, although the rate of unmarried long-term relationships is increasing at a pace three times that of marriage and the divorce rate is a healthy 41%. The national divorce rate had held at this level for the last decade or so, after two sharp increases that followed the introduction of the federal Divorce Act in 1968 and the removal of the provisions about fault and matrimonial misconduct in 1985.

In 2012, I was asked to provide a keynote speech on the future of family law for a course put on by the Continuing Legal Education Society of BC. In light of the decline of religiosity as a compelling social force, and its replacement by a sort of secular rationalist humanism, I suggested that in the not too distant future we might see a flourishing of alternative family arrangements such as:

• communalist families structures;
• polyamorous or polyfidelitous families; and,
• hive, creche and other cooperative approaches to the raising of children from multiple parents.

Given the rate of relationship breakdown, I also suggested that in the future we might see separation management aids such as:

• the ability to register as a non-couple, expressly renouncing the existence of a marriage-like relationship;
• property ownership and acquisition software to trace excluded property and family property;
• term-limited relationship contracts; and,
• separation insurance.

My presentation was surprisingly well received. However, it seems that I am not alone in my speculations. In a brilliant article for Time magazine, Jessica Bennett writes about a 2014 study by USA Network, yes the television network, on the relationship preferences and attitudes of millennials, those aged roughly 18 to 34. Bennett writes:

"They found all sorts of things: among them, that people cheat on the Internet (uh huh), that young people don’t think their relationships are like their parents’ (of course), and that everyone seems to have taken to the term uncoupling (yuck)."

Even more interestingly, Bennett notes that:

"Buried in the data was the revelation that almost half of millennials (43%, and higher among the youngest subset) said they would support a marriage model that involved a two-year trial — at which point the union could be either formalized or dissolved, no divorce or paperwork required. Thirty-three percent said they’d be open to trying what researchers dubbed the 'real estate' approach — marriage licenses granted on a five-, seven-, 10- or 30-year ARM, after which the terms must be renegotiated. And 21% said they’d give the 'presidential' method a try, whereby marriage vows last for four years but after eight you can elect to choose a new partner. 

"In total, nearly half of all of those surveyed, ages 18 to 49 — and 53% of millennials — thought marriage vows should be renewed, and nearly 40% said they believed the 'till death do us part' vow should be abolished. In other words: Beta marriages! ..."

These are some very interesting findings. They suggest that the generation just emerging into adulthood takes a starkly realist approach to relationships and recognizes not only the fact that some marriages fail but perhaps that some marriages should fail.

There were a number of ideas behind my suggestion of the term-limited relationship. At a basic level, I thought that a fixed term would give couples a regularly repeating opportunity to seriously consider the state of their relationship and reflect on their contentment, areas of dissatisfaction and areas for potential change and improvement. Too many couples, married or not, don't have regular check-ups with each other, and without the conscious airing of grievances, malaise and discontentment, irritation can fester, ultimately diminishing everyone's quality of life and encouraging the sort of seething resentment that makes the lives of divorce lawyers so comfortable yet so miserable.

I also thought that establishing a presumptive termination point would flip the normal dynamics of separation by requiring the consent of both to continue the relationship for another term. This might spare one or both parties from at least some of the blame and guilt involved in deciding to end a relationship; after all, it was going to end anyway. The fixed termination point would also allow couples to proactively address common trouble spots by planning leases, mortgage renewals, car loans, time share obligations and other commitments ahead of time.

The equality of opportunity to decline renewal might also empower a party to set the terms on which the relationship might continue. These terms might address irritating personal habits, responsibility for common chores, attendance at counselling, spending patterns and shared debts, relationships with others, means of conflict resolution and management of family obligations. In my experience, marriage and cohabitation agreements that call for a review are rarely actually reviewed, either because the couple have forgotten about the term or because the review may prejudice the survival of the relationship. In a fixed-term relationship, a review would be necessary for the continuation of the relationship.

Would term-limited relationships work in real life? Honestly, I don't know, but I think the idea is worth considering, particularly by younger couples. So, apparently, do the millennials. Here's the infographic from Bennett's Time article:

In case you can't read it, the results of the USA Network survey are essentially these:

• 10% of respondents would be interested in a multiple-partner relationship, in which a marriage could be to more than one person at a time (interestingly, the Family Law Act defines "spouse" in such a way as to permit more than one relationship that simultaneously qualifies as spousal);
• 21% would interested in a relationship that would last for four years, with an option of a further four;
• 36% would be interested in marriages in which the licence to marry is granted for fixed terms, and must be renegotiated to be extended; and,
• 43% would in interested in a trial relationship of two years, a "beta" marriage, after which the relationship could be formalized or dissolved.

Interesting ideas all. However, it is worth noting that the survey also discovered that 31% of respondents thought that marriage should continue to be permanent and the legislation allowing divorce should be rescinded.

I'll write about the Family Law Act and polyamorous spousal relationships in a future post.

My thanks to my friend and colleague Zara Suleman for bringing this interesting article to my attention. Thanks also to feedly.com for thoughtfully caching an earlier draft of this article, thus saving me from a painful re-write after an even more painful accidental deletion.

Family Law Act Applies to Unmarried Spouses Separating before Act came into Force: Critical New Supreme Court Decision

The new year has gotten off to a very good start. On 30 December 2013, Madam Justice Hyslop released her judgment in Meservy v. Field, a concise and learned decision that unflinchingly addresses one of the most significant questions remaining on the application of the new Family Law Act: do the property provisions of the act apply to unmarried couples who separated before the act came into force on 18 March 2013? The answer to this question is very important because a "yes" would give unmarried spouses a presumptive entitlement to half the family property, while a "no" would leave all unmarried spouses separating before 18 March 2013 stuck making difficult claims under the common law.

Here's the background to the question.

Under the old Family Relations Act, only married spouses could make claims for the division of family assets. Although unmarried couples who had lived together for at least two years were "spouses" for the parts of the act about spousal support, they weren't spouses for the parts of the act about property. This is the definition from s. 1:

"spouse" means a person who

(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,

Parts 5 and 6 were the parts dealing with property and pensions, and, under s. 56 in Part 5, a married spouse was entitled to 50% of all of the family assets:

(1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset ... 

(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.

To be clear, unmarried couples had no property rights under the old act, with a minor exception for to couples with cohabitation agreements. As a result, to make a claim to property owned only by one person, the other would have to make a complicated claim for "unjust enrichment" under the law of equity and, if proven, for restitution by a "constructive trust." This was all very complicated and rarely yielded a result anywhere near the result the couple would have had if they had been married.

The new Family Law Act made a number of huge changes to the law in British Columbia, and giving property rights to unmarried spouses was probably one of the most significant. This is how the new act defines "spouse," at s. 3:

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or 

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or 

(ii) except in Parts 5 and 6, has a child with the other person.

(2) A spouse includes a former spouse.

This is hugely important because it means that you are a "spouse" for the parts of the act about property and spousal support if you are married or unmarried but have lived together for at least two years. The only couples not shut out are unmarried couples who have lived together for less than two years.

"Spouse" also includes people who used to be spouses. In other words, married spouses who have divorced and unmarried spouses who have separated can also make a claim for the division of property under the new act. This right isn't perpetual, s. 198 imposes a two year time limit:

(2) A spouse may start a proceeding for an order under Part 5 to divide property or family debt [or under] Part 6 to divide a pension ... no later than 2 years after,

(a) in the case of spouses who were married, the date

(i) a judgment granting a divorce of the spouses is made, or 

(ii) an order is made declaring the marriage of the spouses to be a nullity, or

(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

Under s. 81, anyone who falls within the definition of "spouse" and makes a claim within the two year time limit is entitled to 50% of all of the family property:

(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

Okay, so all of that is probably pretty clear. Here's where things get sticky.

The new act was passed by the legislature on 23 November 2011, and received royal assent on 24 November 2011. However, the lion's share of the act — all of the really important stuff — would not come into force until an unspecified date in the future. Although the bill had now become a law, it was not yet operative.

In the middle of June 2012, we learned that that the act would come into force on 18 March 2013.

Let's do some math. Remember how unmarried spouses who have separated can make a claim for a share of property under the Family Law Act? Remember that two year time limit? Well, it looks like an unmarried couple would have had to have separated before 18 March 2011 if they were going to be disqualified by the time limits. And of course, 18 March 2011 was more than nine months before the bill was even tabled in the legislature, and a whopping fifteen months before the effective date was announced.

As a result, it seems to me that anyone who was in an intact unmarried spousal relationship on or after 18 March 2011 would be unable to escape a potential claim under the Family Law Act. Ouch. This is what I wrote on 10 March 2012, before the effective date was announced:

"When the Family Law Act comes into force, for the purposes of the parts of the law that divide property and debt "spouse" will at that moment be defined as including:
1. anyone who is or has ever been in a married relationship, and
2. anyone who is living with another person in a marriage-like relationship and has done so for at least two years, and anyone who has ever lived with someone in a marriage-like relationship for at least two years. 

"The limit to these spouses' ability to make claims for the division of property and debt is that the claim must be made within two years of the date of separation, for unmarried spouses, or the date of divorce, for married spouses. 

"There is no twelve- to eighteen-month period to think about things. The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships. 

"To summarize, as long as the act comes into force on or before 24 November 2013, if you were in a spousal relationship when the Family Law Act became law, you will be subject to the property and debt provisions of the new law. Breaking up now will not save you from the effects of the new law. It's too late and was too late from the moment the bill was tabled. To take advantage of the new legislation, all a spouse needs to do is wait until the Family Law Act comes into force and then file an action in the Supreme Court."

This is what I told lawyers, in a post on the website of Courthouse Libraries BC, who were acting for unmarried couples separating after 18 March 2011 after the effective date was announced:

"Your client will be a 'spouse' as defined by the FLA when it comes into effect on 18 March 2013. Start a Supreme Court action now if there are limitations under the FRA to preserve or some other reason to commence proceedings, state your client’s claim as a claim for a property interest under the principles of unjust enrichment and amend your pleadings to claim under the FLA when it comes into effect."

If I was right in my interpretation, the consequences would be huge. Thousands of people across the province in unmarried spousal relationships after 18 March 2011 would be stuck with a law that gave them property rights, a law that didn't exist when they were together (and didn't exist on 18 March 2011), regardless of what their intentions might have been going into their relationship. As you'd likely guess, lots of people in long-term, unmarried relationships chose that kind of relationship precisely to avoid property issues.

Despite the significance of this issue, we have not yet, at least not until Justice Hyslop's excellent decision, had a case that square on addressed the problem:

• in Trudeau v Panter, the court decided that the parties' relationship was not "marriage-like," and thus the property provisions of the new act did not apply;
• in Reynolds v Huard, the court refused an application to amend the claim to include a claim under the Family Law Act on the basis that the parties had separated in 2003 and the claim was filed in 2008, long before the new act was a twinkle in the Attorney General's eye and well before the two year time limit (a subsequent appeal of the decisions was refused on the basis of the date of separation);
• in Bressette v Henderson, the claim had been amended to include a claim under the new act, however because of the nature and length of the parties' relationship the court made an order under the common law rules saying that the result would have been the same under the new act, and refused to decide whether the new act should apply or not;
• in Lee v Starinovich, the lawyers agreed the new act would not apply, and the property at issue was acquired before the parties' relationship began and thus wouldn't qualify to be shared under the new act even if the new act was applied; 
• in Asselin v Roy, the lawyers agreed that the new act would apply, saving the court from making a decision on the issue; and,
• in P.N.K. v C.L., the court refused an application to amend the claim brought on the morning of trial on the basis that the parties separated more than two years before the new act came into effect.

Okay, that's enough context. Let's get to Meservy v Field.

In the case the parties — who I will call "husband" and "wife" for ease of reference, even though they weren't married — had lived together from January 2009 to September 2011, a relationship what was long enough to qualify as "spouses" under the Family Law Act and ended late enough to fall within the two-year time limit.

The wife started her claim on 14 March 2013, just a few days before the new act came into effect, asking for an interest in property owned by the husband under the old common law rules. The husband wished to make a property claim under the Family Law Act, which the wife said should not apply. The parties went to a judicial case conference on 11 June 2013, where the issue of the new act was obviously raised. The Master hearing the JCC ordered that the parties make an application to determine whether the act applied by a certain date in advance of trial. This was the application heard by Justice Hyslop.

There is, of course, more to to this issue than the two-year limit, although that has proven a useful reason to turf claims resulting from unmarried relationships ending prior to 18 March 2011. The core of the problem is whether the act has a retroactive effect or not, because of the basic legal principle that legislation only has a go-forward effect. This is what I said about the issue in that March 2012 post:

"The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships."

Justice Hyslop started her analysis by quoting Elmer Driedger, a well known authority on the interpretation of statutes, to define her terms (important bits in bold):

"A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event."

She then notes the presumption against retroactivity I referred to above, quoting Ruth Sullivan, another authority on the issue:

"It is not disputed that there is a presumption against legislation being retroactive. For legislation to be retroactive, the legislation must be specific that it is to operate retroactively or 'by express words or by necessary implication'."

A similar rule can be found in s. 3 of the provincial Interpretation Act:

(3.1) If an Act contains a provision to the effect that the Act, or a portion of it, comes into force on a date that is earlier than the date of assent, that Act or portion referred to in the provision

(a) comes into force in accordance with the terms of the provision, and 

(b) on coming into force, is deemed to have come into force on the earlier date referred to in the provision and is retroactive to the extent necessary to give it force and effect on and after that earlier date.

The key, then, lay in whether the Family Law Act is "retroactive" or "retrospective." Justice Hyslop then refers to two passages from Pierre-André Coté, yet another authority on statutory interpretation, for a clarification of the principle and an example of its application in family law matters:

"Normal retroactive effect modifies all the legal consequences of the facts at issue, regardless of the moment when they were accomplished. However, the legislature can decide to modify only the future effects of past facts, while leaving unchanged the consequences which occurred prior to commencement. This second case is termed 'retrospective effect'." 

"For example, a new statute may convey a benefit on all married persons. Here, the date of marriage is of no significance: it is the ongoing fact of being married and not the momentary fact of marriage which results in application of the law. As long as a person’s marital status is 'married' subsequent to the commencement of the statute, they may claim the benefits created by the statute. The date of marriage is irrelevant from the standpoint of transitional law."

Here is Her Ladyship's conclusion (cites omitted):

"[45] [The wife] and [the husband] are spouses (former spouses) by operation of the definition of spouses in the FLA. This status occurred prior to the FLA coming into force. To make a claim for property rights under Part 5 of the FLA, [the husband] had to bring his claim to court within two years of the date when he and [the wife] separated. Without making his claim within the two years, he did not have the status of a spouse to make claims under Part 5 of the FLA. 

"[46] In Re Sanderson and Russell, the Ontario Court of Appeal dealt with a situation similar to that of [the parties]. The issue was the application of the Family Law Reform Act to a “common law relationship” that ended before the FLRA came into force. In Re Sanderson, the parties lived together for six years in a manner sufficient to meet the definition of spouses in the FLRA. ... In the Ontario legislation, the definition of a spouse was that they had to have cohabited together in a conjugal relationship for five years and they had to have resided together the previous year prior to making the application. 

"[47] The FLRA stated that each spouse had a duty to provide support to the other and, upon an application by a spouse, a court may order support to that spouse. ... 

"[49] Mr. Russell resisted the claim for spousal support on the basis:

…it would be unwarranted retrospective application of the Act to hold that such period can be the basis of a claim by Mrs. Sanderson.

"[50] Mr. Russell further argued that the relationship was over when the legislation came into force and that he and Mrs. Sanderson were no longer spouses. The court rejected this argument and stated:

...According to the scheme of the Act this depends upon whether she was a “spouse” at the time of her application. The appellant submits that she was not because: (1) the five years was complete before March 31, 1978, and (2) that part of [the definition] requiring continuous cohabitation within the preceding year (there is no dispute that this means preceding the application) is a limitation period and not really part of the definition of “spouse”. I do not accept this submission. While the one-year period undoubtedly serves the necessary purpose of a limitation provision it is expressly made part of the definition of spouse. Therefore, a person satisfying the requirements of [the definition] is a spouse for the purpose of [spousal support]. … Support then will serve a useful function. With this consideration in mind it seems to me that it is reasonable to regard the final clause of [the definition] as part of the substantive definition of “spouse” and not just a limitation provision. In short, the definition means what it says.

"[51] The court made reference to the policy of the FLRA which:

…is to enable certain persons who are in need to claim support. …regardless of the kind of “spouse” seeking it.

The court stated that with this policy in mind, that:

…it is reasonable to regard the final clause of [the definition of spouse] as part of the substantive definition of “spouse” and not just a limitation provision. In short, the definition means what it says.

"[52] The court concluded that the language in the FLRA had:

…all of the factual ingredients giving a person status to assert a claim for support are contained in the definition provision. This provision, of course, is not an operative one. It defines an existing status, albeit by reference to past events. When the defined term is used in the operative provisions ... it is reasonable to assume that the Legislature intended that a person having the defined status on the date the Act came into force would be entitled to the benefit of the operative provisions.

"[53] The court found that the FLRA was not retroactive because the applicant spouse became a spouse before the FLRA became law. The importance was that she was a spouse at the time she made her application. ... 

"[55] The Ontario legislation gave married and unmarried spouses obligations and rights to spousal support dependent upon their status prior to the legislation coming into force. 

"[56] On March 18, 2013, unmarried and married spouses in British Columbia were entitled to seek a division of 'property and debt' within two years from the date of their separation in the case of person’s in marriage-like relationships and the case of married people two years from the date of divorce. The two year period relates to their status of a spouse. 

"[57] As in Re Sanderson, the date of separation is not just a limitation period, but is part of the substantive definition of a spouse in British Columbia. 

"[58] I declare that the provisions of Part 5 of the FLA are applicable to this proceeding."

And there you have it. The definition of "spouse" in the Family Law Act is not subject to the presumption against retroactivity, the definition has a retrospective effect which changes the future consequences of past relationships. As a result, and pending an appeal decision to the contrary, unmarried persons who met the definition of spouse during their relationship and separated at anytime within the last two years may make claims for the division of family property, and family debt!, under the Family Law Act.

This case is a nice bookend to Smith v Anderson, a November 2013 decision of Master Bouck, which came to somewhat the same result in another application to amend a claim to include a claim under the Family Law Act. In that case, which I've written about previously, the amendment was allowed on the basis that the parties had separated within the two-year time limit; there was no reason not to allow the amendment; and, any prejudice to the other party could be rectified by a costs award. However, as to the critical question of the effect of the amendment, the Master left that to the trial judge:

"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."

My thanks to my colleagues Morag MacLeod and Agnes Huang for bringing this important case to my attention.

Amendment Granted to Allow Unmarried Spouse's Claim for Property Under FLA

In her recently-released decision in Smith v. Anderson, Master Bouck has allowed a claimant's application to amend a Notice of Family Claim filed prior to the new Family Law Act to include property claims under that act.

As readers will recall, the Family Law Act extends the same property rights to unmarried spouses as its does to married spouses. Moreover, the act is not explicitly worded so as to prevent unmarried spouses who started court proceedings before the new act came into effect from changing their claims to ask for property order under that act. (On the other hand, married spouses who split up and started court proceedings before the new act are stuck with the old act.) As you can imagine, there has been much discussion among the bar about what should be done when someone wants to change an older claim to seek property orders under the new act. 

I happen to believe, at least for now, that there is little that can be done to stop someone from making such a change (see my post "Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act"); others take a different view. However, I also agree with the view of Master McCallum in Reynolds v. Huard that at a minimum an unmarried spouse must be within the two-year time limit set out in s. 198 when the property claim is added.

In the Smith case, the claimant had already made one amendment under SCFR 8-1(1)(a) — you only get one free amendment before the Notice of Trial is filed — leaving the respondent in the delightful position of being able object to the second amendment and force the issue to a hearing before trial. 

Master Bouck held that the basic law on such amendments was as summarized in Dawe v. B.C. Children's Hospital, a 2004 decision of our Supreme Court, in which Madam Justice Ross said this (cites omitted):

"[17] The general principles to be applied in the consideration of an application to amend are as follows: 

(a) amendments should be permitted as are necessary to determine the real question in issue between the parties

The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to "so that, as far as possible, all matters in controversy between the parties may be completely and finally determined; 

(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded; 

(c) a party is not required to adduce evidence in support of a pleading before trial; 

(d) on an application to amend the facts alleged are taken as established; 

(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient."

Master Bouck then reviewed the few number of cases of unmarried spouses wishing to amend claims to seek orders under the Family Law Act, namely Reynolds and P.N.K. v. C.L., another case in which an amendment was sought out of time, and observed that:

"[30] In neither case, however, does the court rule that the FLA will not apply to the circumstances in which Ms. Anderson and Mr. Smith find themselves. That is, an action already commenced but with a separation date arguably within the two-year period stipulated in s. 198(2)(b)."

As a result, she found that:

"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."

In the meantime, for the purposes of allowing the parties to prepare for the trial at which the applicability of the FLA remedies would be determined, the court concluded that it would be "just and convenient" to grant the amend of the Notice of Family Claim (important bits in bold):

"[33] First, I accept the claimant’s submission that denying the amendments would simply result in another action being commenced. A multiplicity of proceedings is to be avoided. A second action will certainly not lead to a speedy resolution of the parties’ dispute: Rule 1-3 of the SCFR. 

"[34] Second, I find that no fault lies with the claimant for the suggested delay in bringing this application before the court. The application could not have been made before the FLA came into force. The delay in having the application heard can be attributed to a number of factors, including both counsel’s other commitments and the vagaries of Supreme Court chambers time. 

"[35] As well, I accept that the respondent was given reasonable notice that these amendments were going to be pursued. 

"[36] Third, while it is appreciated that the amendments may lead to further discovery (and probably additional expert reports), any resulting prejudice to the respondent can be remedied by the trial judge in a costs award. 

"[37] Weighing all of these factors, I find that it would be just and convenient to grant leave to amend the notice of family claim in accordance with the draft pleading appended as Schedule “A” to these reasons. It is to be noted that this document includes a plea not found in the originally proposed further amended notice of family claim, namely a claim against the respondent for occupational rent. Claimant’s counsel did not believe that such a plea was necessary at law. The respondent takes a different position. Thus, it is just and convenient to allow this amendment to ensure that all matters between the parties are properly adjudicated upon at trial. 

"[38] The original further amended notice of family claim will be returned to the claimant as the document should be appended to the order submitted to the registry."

My thanks to the inestimable Agnes Huang for bringing this case to my attention.

The Cleavers Are Moving Out: StatsCan reports on the changing face of the Canadian family

Statistics Canada has published the results of the 2011 Census, and its analysis of the changing makeup of the Canadian family is worthy of note. As CBC's article on the analysis pithily notes, "the nuclear family is no longer the norm in Canada."

The newsbite summary of Statistics Canada's conclusions says this:

• Married-couple families were the predominant family structure in 2011, at 67.0%. For the first time, there were more common-law-couple families in 2011, 16.7%, than lone-parent families, 16.3%.
• The 2011 Census of Population counted 64,575 same-sex couples. In 2011, 32.5% of same-sex couples were married, nearly double the 2006 share. The 2006 to 2011 period marks the first five-year period during which same-sex couples could legally marry, following the legalization of same-sex marriage for all of Canada in July, 2005.
• Stepfamilies were counted for the first time in the 2011 Census of Population, providing a more detailed portrait of Canadian families. There were 464,335 stepfamilies in 2011, or 12.6% of couple families with children aged 24 and under.
• For the first time, there were more one-person households in 2011, 27.6%, than couple households with children aged 24 and under, 26.5%.

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.

Unmarried Couples, the Division of Property and the New Family Law Act

Courthouse Libraries BC has posted a short comment of mine on how the transitional provisions of the Family Law Act are going to work with unmarried couples' existing property claims. Read the post on Courthouse Libraries' blog, The Stream.

Kerr v. Baranow 2.0: Supreme Court Releases Second Trial Decision

Ms. Kerr and Mr. Baranow are one of those unfortunate couples, like Mr. and Mrs. Hartshorne and Ms. Rick and Mr. Brandsema, whose legal battles have doomed them to fame within the family law bar. The Supreme Court has just published its second trial judgment addressing the matters arising from their 2006 separation.

At the original trial in 2007, Ms. Kerr applied for spousal support and a trust interest in property owned by Mr. Baranow. As the parties were unmarried, Ms. Kerr could not avail herself of the property provisions of the Family Relations Act and was forced to rely on the awkward and general unsatisfactory equitable principles of unjust enrichment. The trial judge made an order for retroactive spousal support, and, finding that Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, gave her a one-third interest in a property owned by Mr. Baranow worth about $950,000 for a total cash award of $315,000 plus costs.

Mr. Baranow appealed. The appeal judgment was released in 2009, and allowed Mr. Baranow's appeal from the cash award and the retroactive aspect of the order for spousal support.

This time, Ms. Kerr appealed. The Supreme Court of Canada released its judgment in 2011, restoring the trial judge's decision on spousal support, ordering a new trial on Ms. Kerr's unjust enrichment claim, and giving Ms. Kerr her costs of the proceedings to date. The reasons of Mr. Justice Cromwell are a masterful restatement and modernization of the law on unjust enrichment and are required reading for law students throughout Canada.

The second trial judgment was released last week. The court applied Justice Cromwell's decision with rigour and exactitude, and reached almost the same conclusion as the original trial judge: Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, and she would be entitled to a one-quarter interest in Mr. Baranow's property, for a total cash award of $240,000 plus costs. 

The money likely spent over five years, two trials and a trip to the Supreme Court of Canada to achieve a result $75,000 off the original judgment is worth some reflection... as are the costs awards owing by Mr. Baranow to Ms. Kerr.

Unmarried Spouses Can't Escape Family Law Act

There's a basic principle of statutory interpretation that says that new legislation can only be interpreted as operating from the moment it comes into effect onward, and that new legislation can't go back in time unless the new legislation expressly says so. In other words, if a law comes into force on April 1st which says that men must wear orange jackets on Thursdays, the requirement is in effect from the first Thursday after April 1st, and doesn't apply to any of the Thursdays that came before April 1st.

This principle is really important for the new Family Law Act because the new legislation changes so much so significantly. In this post, I'm going to talk about whether people who are in unmarried relationships now are going to be caught by the definition of "spouse" under the new legislation.

Who is a spouse?

One of biggest changes under the Family Law Act has to do with who's a "spouse" and who's not. The definition changes under the new act. For the purposes of spousal support, "spouse" includes:

1. married spouses,
2. people who have lived in a marriage-like relationship for at least two years, and
3. people who have lived in a marriage-like relationship for less than two years but have a child together.

 For the purposes of dividing property and debt, "spouse" has a narrower definition and includes only:

1. married spouses, and
2. people who have lived in a marriage-like relationship for at least two years.

This last part is really important. Right now, unmarried spouses don't have any automatic property rights under the Family Relations Act. When the new law comes into force, unmarried spouses will have property rights equal to the rights of married spouses.

Time limits to the claims spouses can bring

The other thing that's important are the time limits about when a claim can be made, because under s. 3(2) of the new act, "spouse" also includes former spouses. Under s. 198, claims for spousal support and the division of property and debt must be brought within two years of divorce or nullity, for married spouses, or within two years of separation, for unmarried spouses.

Spouses and the claims spouses can make

To summarize everything, under the Family Law Act a "spouse" who is entitled to make a claim for spousal support and the division of property and debt includes separated unmarried spouses, but the application must be made within two years of when they separated. Under the Family Relations Act however, unmarried spouses stopped being spouses within one year of when they separated, after which a claim for spousal support could not be made, and unmarried couples were never able to make a claim for the division of property.

The problem

So here's what it all boils down to.

• Right now unmarried couples who have lived together for at least two years are not "spouses" for the division of property under the Family Relations Act.
• Unmarried couples who have lived together for at least two years will qualify as "spouses" under the Family Law Act. Spouses who have separated will also qualify as "spouses."
• Under the Family Law Act, separated spouses can apply for spousal support and the division of property and debt as long as they apply within two years of the date they separated.

Last year, the Attorney General issued a statement that the new act would come fully into force twelve to eighteen months after it became law on 24 November 2011. That's less than two years.

Mea culpa

From time to time, lawyers call me for a second opinion. I think I've been giving the wrong advice for the past two or three months. I had been telling people that the definition of "spouse" under the Family Law Act could only operate prospectively, that is, into the future. Therefore, when the new law comes into effect, the new definition would start then. Unmarried couples who aren't "spouses" for the division of property now wouldn't be "spouses" for the division of property and debt unless they are still together when the new law comes into effect.

This made sense to me, especially because it seemed somewhat unfair to drop unmarried couples into the deep fryer without giving them fair warning. I thought about how the definition of spouse limits spousal status under the Family Relations Act to one year after separation, and it seemed that this gave people plenty of time, figuring that spousal status once lost couldn't be regained. I assumed that at least one of the reasons for the twelve- to eighteen-month delay was to give everyone lots of time to think about their relationships. I thought that the knowledge that a relationship will have significant economic consequences in the future might make some people reexamine things and consider whether the new effect of the Family Law Act was more than they had bargained for when they started their relationship.

Then a colleague named Ron Huinink called me, I looked into things more closely and discovered that this wasn't the case at all. Yikes.

Summary

When the Family Law Act comes into force, for the purposes of the parts of the law that divide property and debt "spouse" will at that moment be defined as including:

1. anyone who is or has ever been in a married relationship, and
2. anyone who is living with another person in a marriage-like relationship and has done so for at least two years, and anyone who has ever lived with someone in a marriage-like relationship for at least two years.

The limit to these spouses' ability to make claims for the division of property and debt is that the claim must be made within two years of the date of separation, for unmarried spouses, or the date of divorce, for married spouses.

There is no twelve- to eighteen-month period to think about things. The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships.

To summarize, as long as the act comes into force on or before 24 November 2013, if you were in a spousal relationship when the Family Law Act became law, you will be subject to the property and debt provisions of the new law. Breaking up now will not save you from the effects of the new law. It's too late and was too late from the moment the bill was tabled. To take advantage of the new legislation, all a spouse needs to do is wait until the Family Law Act comes into force and then file an action in the Supreme Court.

Cohabitation Agreements and the new Family Law Act:Why you probably want a cohabitation agreement

In a previous post, “Why you DON’T Want a Cohabitation Agreement,” I summarized the law on the division of property between unmarried couples and how s. 120.1 of the Family Relations Act usually made cohabitation agreements a very, very bad idea when the purpose of the agreement was to protect property brought into a relationship. 

That’s all changed as a result of the enactment of the Family Law Act on 24 November 2011. Let me explain.

Property, unmarried couples and the Family Relations Act

Under the Family Relations Act, married spouses are presumed to have a one-half interest in everything that qualifies as a “family asset.” The definition of family asset is so broad, however, that almost everything a married couple has is a family asset whether they bought it after the marriage or brought it into the marriage; most of the time, a married spouse is entitled to half of everything regardless of when and how an asset was acquired.

This isn’t the case for unmarried couples because unmarried couples are expressly excluded from the parts of the Family Relations Act that deal with the division of family assets.

Unmarried couples have no shared interest in any assets except those that they own together. When only one person owns an asset, like the family home, for example, it presumptively remains that person’s sole property, no matter how long the couple lives together.

Unmarried couples, trust claims and unjust enrichment

Of course, after a couple has lived together for five, ten or twenty years, it can seem somewhat unfair that only one of them has an entitlement to the family home, or the family car, or a business or whatever. In a case like this, the person who doesn’t own an asset tries to establish an entitlement by proving the existence of an express trust or a resulting trust, or, more commonly, by proving that the person who owns the asset was unjustly enriched by something the non-owner contributed during the relationship.

All of these claims are difficult to prove, and, even when successful, rarely result in a property interest any where close to the one-half interest the parties would have had if they had been married.

As a result, someone who didn’t want to share the assets being brought into a relationship would simply get some legal advice about how to avoid express and resulting trusts, and make sure that the contributions of the other spouse were always compensated in someway in order to duck an unjust enrichment claim.

Unmarried couples, cohabitation agreements and the Family Relations Act

Despite this rather favourable legal circumstance, people often wanted cohabitation agreements before entering into a long-term, live-in relationship, mostly to address the division of property in the event the relationship ended. Normally, this would be a sensible course of action; wouldn’t it be easier not to have to worry about unintentionally creating a trust relationship or being inadvertently enriched? 

Not so. The problem here lay in a nasty little section of the Family Relations Act, s. 120.1. Under this section, if an unmarried couple made an agreement that dealt with property, the parts of the act that apply to the division of assets between married spouses applied to the unmarried couple making the agreement, and the cohabitation agreement was considered to be a marriage agreement.

This was very bad, for two reasons. First, s. 65(1) of the Family Relations Act expressly allows the court to vary marriage agreements it finds to be unfair. Second, the definition of “fairness” was the presumption of equal entitlement set out in s. 56 of the act which would otherwise have only applied to married spouses.

In a nutshell, as a result of s. 120.1, the standard of property division for married spouses applied to unmarried couples with cohabitation agreements, including certain presumptions about the division of property that would be far worse in effect than what the principles of trust law and unjust enrichment would have yielded in the absence of the cohabitation agreement.

Unmarried couples and the Family Law Act

Under the Family Law Act, unmarried couples that have cohabited for more than two years will have the same property rights as married spouses.

Under the new act, assets brought into a relationship and certain assets acquired afterwards, like court awards and inheritances, will be excluded from division between spouses. The assets that will be divided, and the presumptive division is an equal division, are the assets acquired after the relationship began as well as any increase in the value of the excluded assets.

From the point of view of the person who owns an asset, this is better than the law for married spouses under the Family Relations Act and better than the law for unmarried couples with a cohabitation agreement. However, there can still be some very significant consequences in sharing in the increase in value of an excluded asset — think of what has happened to the value of real estate in the lower mainland over the past 10 years, or the values of stock in Apple, crude oil and your Gretzky rookie card over the same period.

Despite the coming changes in the law, some couples will still want a cohabitation agreement, specifically couples who are in long-term unmarried relationships right now and couples with assets who expect to be in long-term unmarried relationships.

Cohabitation agreements, the repeal of s. 120.1 and the coming-into-force of the Family Law Act

The Family Law Act became law on 24 November 2011. Although most of the act, including all the parts about property division, are not yet in force, other bits came into effect right away, including s. 258 which had the effect of repealing s. 120.1. Fantastic! Since the Attorney General has said that the rest of the Family Law Act isn’t going to come into force for another 12 to 18 months, this means that we’re in the middle of a legislative sweet spot for unmarried couples. 

Unmarried couples may now enter into cohabitation agreements without fear of the grim consequences of s. 120.1, and almost without regard to the property provisions of the Family Relations Act. 

On top of that, unmarried couples probably want to enter into cohabitation agreements if they wish to avoid some or all of the consequences of the property division regime of the new Family Law Act. In other words, if there’s anything about how property will be shared under the new act that browns you off, now is your opportunity to do something about it, and you’ve got 12 to 18 months within which to get it done. 

Get a cohabitation agreement and get it soon

For the next 12 to 18 months, couples across the province will be going through an unpleasant assessment of how their legal rights will fare under the new act. That’s okay, it’s a necessary consequence of change. However, if you are in a relationship of the sort that won’t require you to share your property, that’s going to change too, and if you want to do something about it and don’t want to end your relationship, the time is ripe to get a cohabitation agreement done up.

There will never be a better time to enter into a cohabitation agreement than right now, under the current law and between the repeal of s. 120.1 and the coming-into-force of the property provisions of the new Family Law Act.

Cohabitation agreements are somewhat complicated at the best of times; they’re somewhat more complicated now that we’re in the transition between one legal regime and another. You really must see a lawyer if you want to get a cohabitation agreement drawn up. If you don’t have someone to see, contact the CBA's excellent Lawyer Referral Service at 604-687-3221 or 800-663-1919.

The Early and Unlamented Deaths of ss. 90 and 120.1:Government takes quick action on parental support and unmarried persons' property agreements

I've had the opportunity to take a more in depth reading of the transitional and repeal provisions of the Family Law Act, largely as a result of some issues brought to my attention by Nate Russell of Courthouse Libraries BC.

The nuts and bolts of the new Family Law Act run from ss. 1 to 244. The government's power to make the host of new regulations the act will require runs from ss. 245 to 249. The transitional provisions — the sections which guide the changes from the old Family Relations Act to the new Family Law Act — are brief and run from ss. 250 to 256. The really dry stuff, about the other laws that will be changed or repealed to accommodate the new act run from s. 257 all the way through to s. 482 and are dreadfully dry reading. This is, however, where you can find the really interesting things which motivated the call from Nate.

At the end of the act, further to s. 482, is a table showing which parts of the act come into force upon the act receiving Royal Assent which will come into force down the road by Order in Council. As readers will recall, the Attorney General has announced that implementation of the act will take 12 to 18 months. However, a close look at the table shows that some parts of the act will come into effect the moment the bill receives Royal Assent, two or three days after it clears Third Reading, and won't need to wait for the eventual Order in Council. (Read my post "The Present Effect of the Proposed Family Law Act" for a brief discussion about how a bill becomes law.) An acquaintance at the Attorney General's office has confirmed that this is indeed the intention behind s. 482.

Apart from some minor housekeeping changing references to "husband and wife" to "spouse," the provisions coming into effect right away will:

• make the Land (Spouse Protection) Act available to unmarried spouses,
• repeal the provisions of the Family Relations Act for parental support (s. 90), and
• repeal other provisions relating to the effect of property agreements between unmarried couples (s. 120.1).

The last point is the most important, I think, although frankly the repeal of parental support is a close runner up. (Read my post "Parental Support in British Columbia" for an explanation of this subject.)

If you go back to my post "Why you DON'T want a cohabitation agreement," you'll see a long explanation about how s. 120.1 made the property rules applicable to married couples applicable to unmarried couples who had the misfortune to make an agreement about property. This meant that cohabitation agreements were usually very bad for the person owning property, as they could produce a far worse result than the worst case result without an agreement.

The repeal of s. 120.1 now means that unmarried couples can go ahead and enter into property agreements now before the rest of the Family Law Act comes into effect without getting caught by the unexpected and frankly counterintuitive consequences of s. 120.1. In other words, unmarried couples can make an agreement now to avoid the property sharing provisions of the new act without worrying about the negative consequences of the old act.

My thanks again to Nate for pointing this out.

Marriage and the Material Girl/Boy

The LA Times has reported on a study published in the Journal of Couple & Relationship Therapy, "Materialism and Marriage: Couple Profiles of Congruent and Incongruent Spouses," which found that "couples where both spouses are materialistic were worse off on nearly every measure." Says the Times:

"Statistical analysis of the research showed that couples who say money is not important to them score 10% to 15% better on marriage stability and other measures of relationship quality than couples who are openly materialistic.

"The study also found that couples in which only one partner is materialistic fare better than couples in which both partners are materialistic."

Well, they do say that money can't buy happiness, and that's certainly true during a relationship and after its collapse. I see some unusual things as a divorce lawyer, but it's always a surprise when I run into people who are more troubled by the potential damage to their material wealth than the prospect of losing contact with their children; what's not surprising at all is that people with this sort of attitude would have especially fractious marriages.

Becoming Common-Law

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.

For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.

Polygamy: The Legal Background

As you probably know, there's a hearing underway to determine whether the Criminal Code provisions criminalizing polygamy are consistent with the Charter of Rights and Freedoms. If so, we may well see prosecutions brought against some of the fine folks of Bountiful, British Columbia. There's a fascinating legal background to the hearing that the media really isn't covering, I suspect because it's probably only interesting to law nerds like myself.

A Recent History of the Common Law on Domestic Relations

Once upon a time, in Europe following the collapse of the Roman Empire to be specific, marriage was an important private economic institution and largely functioned free of control by the church or state. Marriage, and the financial and familial obligations it entailed, was the basic socioeconomic unit of feudal Europe. Upon marriage, a man and a woman were considered to be a single legal unit under the control of the husband: all of the wife's property passed into her husband's control, wives lost the power to conduct business in their own names, a wife lost the right to retain the wages paid for her labour, and husbands became able sue on behalf of their wives ...and solely liable for suits brought against them. In return, she was entitled to be provided with the necessities of life, although the quality and sufficiency of those necessities lay at her husband's discretion.

As with other social institutions, I suspect that the relative importance of marriage can be gauged by the depth and richness of the common law principles which evolved to regulate it. The common law relating to marriage is indeed quite rich and deep, and depicts marriage on the one hand as a quasi-commercial enterprise governed by the law of contracts and on the other as bedrock upon which stood one's reputation and standing in the community.

One could sue, for example, for breach of promise to marry, jactitation of marriage, criminal conversation, harbouring a spouse, and a miscellany of other matrimonial torts. Breach of promise to marry was based on the law of contracts. Jactitation of marriage concerned the false boasting of married status, thereby decreasing the marketability of the person alleged to be married to the boaster. Criminal conversation and harbouring a spouse had to do with the luring of a spouse away from a marriage thus depriving the other spouse of the benefits of the marriage contract, his "conjugal right" to his wife's services and company.

Marriages were entered into by oral agreement and did not require religious solemnization. The role of the church largely lay in determining who might marry, the circumstances in which marriages might be dissolved and addressing other largely social questions.

The law on marriage was thus governed by two masters, the ecclesiastic law on entering and exiting a marriage and the civil common law on the rights and obligations flowing from marriage. This changed dramatically in the early sixteenth century, following the Protestant Reformation in Europe and the Henrician Reformation in England, when government took upon itself the right to manage marriage and divorce. Unfortunately, one major element of Catholic dogma which survived the reformations was idea that marriages were indissoluble, as a result of which getting a divorce in England required the passage of a private act of Parliament!

The Legislation on Marriage and Divorce

The first Parliamentary law on marriage was passed in 1753, in the form of Lord Hardwicke’s Act for the Better Preventing of Clandestine Marriages, to address the unfortunate habit the youth of England and Wales had developed of marrying in Scotland where a costly marriage licence was not required. Prior to this, oral marriage contracts, marriages per verba de praesenti, created a binding marriage; now, the parties had to marry in a church (with exceptions for Jews and Quakers), with the publication of banns and a state-issued marriage licence.

The first Commonwealth law on divorce was England's 1857 Divorce and Matrimonial Causes Act, which allowed people to be divorced by court order and stripped what little jurisdiction remained to the church, and revoked many of the older matrimonial torts:

"As soon as this Act shall come into operation, all Jurisdiction now exercisable by any Ecclesiastical Court in England in respect of Divorces à Mensâ et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exercisable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed."

(If you were curious, and I know you are, a divorce à mensâ et thoro terminated the spouses' obligation to live together and the husband's obligation to provide the wife with the necessities of life without actually giving the parties a divorce; this is the origin of the much-misunderstood judicial separation. A divorce à vinculo matrimonii was required to actually terminate a marriage.)

The UK Divorce and Matrimonial Causes Act was absorbed by the Province of Canada (the pre-confederation political unit formed of Upper Canada and Lower Canada by the 1840 Act of Union) and by the Colonies of British Columbia and Vancouver as a result of the proclamation of Governor Sir James Douglas in 1858.

Marriage and Divorce at the Dawn of the 20th Century

Given the complexity of the common law on marriage and divorce, it's not terribly surprising that the legislation on these subjects would assume a similar quality, and by 1900 we had the federal and provincial Divorce and Matrimonial Causes Acts, the federal Offences in Relation to Marriage Act and the provincial Marriage Act. Marriage remained a tremendously important institution, one with profound social and economic consequences, and these laws sought to protect it.

Under the provincial Divorce Act of 1897, a husband could apply for a divorce on the basis of his wife's adultery. A wife, on the other hand, could apply for a divorce on the basis of her husband's incestuous adultery, rape, adultery coupled with cruelty, or adultery coupled with his abandonment of her for at least two years without reasonable excuse.

The provincial Marriage Act of 1867 allowed religious officials and government-appointed registrars to marry "any two persons" not under a legal disability to contract the marriage, providing that persons under the age of 21 had the consent of their father to the marriage. The act made it a crime to make a false statement to procure a marriage or to perform a marriage between persons not qualified to marry.

The federal Offences in Relation to Marriage Act of 1886 made it a crime to:

1. pretend to solemnize a marriage;
2. procure someone to solemnize a marriage who was not authorized to do so;
3. procure a feigned marriage; or,
4. marry someone while being married to someone else, in other words, to enter into a bigamous marriage.
   

About the same time, similar provisions were being introduced to the criminal law in Canada.

Bigamy, Polygamy and the Criminal Code

Sections 290 to 293 of the federal Criminal Code are titled "Offences Against Conjugal Rights." Section 290 says that every married person who goes through "a form of marriage" with another person and every person who goes through "a form of marriage" with a married person has committed bigamy, punishable under section 291 with jail for up to five years. Section 293 says that people who practice polygamy or "any kind of conjugal union with more than one person at the same time" has committed an offence.

It's a bit difficult to tell these sections apart. Bigamy and polygamy are rooted in the Greek word gamos, meaning marriage. The prefix "bi" means two, and the prefix "poly" means many; accordingly, the dictionary definition of bigamy is being married to two people, and the definition of polygamy is being married to many people. (Polyandry means having many husbands and polygyny means having many wives.) Bigamy is the traditional criminal offence, however, having been made a felony punishable by death by the first Parliament of James I in 1604, and continued in the 1861 Offences Against the Person Act with less severe consequences.

The historical intention seems to have been preserved in the Criminal Code. Section 290 clearly focuses on marriage as the problem created by bigamy; the offence lies in marrying someone knowing him or her to be married, or a married person marrying again while aware that his or her previous marriage subsists. Section 290(2) excuses the bigamous conduct if the married party genuinely believes his or her spouse to be dead.

Section 293 on the other hand, seems aimed at criminalizing polyamorous conduct; the offence of polygamy lies in the parties' agreement to live together in a marriage-like relationship, although, to be clear, a form of marriage ceremony isn't strictly required. This seems to be the core of the problem the Crown is targeting in the present hearing, and the resulting question of whether the criminalization of this sort of conduct is consistent with the Charter guarantee of freedom of religion.

In the legal climate prevailing in 1604 and 1861, the criminalization of bigamy made sense. Bigamous marriages could have disastrous social and economic consequences for the innocent party, and the criminal law fit neatly with the common law principles that had accumulated in respect of the rights and obligations marriage entailed. The criminalization of polygamy, assuming that issues about marriage aren't really the problem the law was intended to address, is about the legislation of morality and the enforcement of conformity. In the nineteenth century, I'm sure this made sense; today I'm not so sure.