Q: I read that the latest Statistics Canada census report had more couples living together common law than getting married. Is there any legal difference between being married or living as a couple for a period of time?
A: The Statistics Canada report reflects the changing social trends within Canada. What was referred to in my youth as “shacking up” is now a recognized and legitimate relationship. Interestingly, the people most likely to live together aren’t who you’d think.
The most recent Canadian census data shows us that between 2001 and 2006, the fastest growing demographic for common-law arrangements were those 60 to 64 years old. Next were persons aged 55 to 59, with slightly lower rates for those 45 to 54. Growth of common-law arrangements was much lower for those younger than 45. So what is often perceived as a young person’s phenomenon is most prevalent for those older than 55.
Read Also
Stock dogs show off herding skills at Ag in Motion
Stock dogs draw a crowd at Ag in Motion. Border collies and other herding breeds are well known for the work they do on the farm.
In our constitutional split of powers, divorce and national pensions are federal matters but marriage and property division are provincial. Each province is free to consider laws relating to marriage, division of property on divorce, and the status of common-law partners in relation to those matters. The provinces have done so, but not in exactly the same ways.
For example, in Saskatchewan, if you live with a person in a “relationship of some permanence” (24 months or more) and then separate, your property will be divided the same as if you’d been married. In British Columbia, the test is essentially the same. In Alberta, I believe the test is three years unless there is a child involved.
This time limit is an important one. Essentially, everything you acquire together after that is to be divided 50-50. If you brought assets to the relationship, only their value at that time is exempt. So if you brought a car in that had a loan against it and you had $1,000 in equity, but are breaking up four years later and have $5,000 in equity, the growth of $4,000 will likely be evenly divided. Similarly, spousal support (alimony) is dealt with on the same basis as between married persons.
As well, the existence or lack of a marriage licence does not greatly affect matters pertaining to the care and custody of children. Courts routinely look to the best interests of the children. I suspect most judges are convinced that a marriage licence does not automatically make you a better parent than someone who doesn’t have one.
So in this area, there really aren’t advantages or disadvantages to living common law, with the exception of the first 24 months.
There are other issues to consider. Federal law now takes into account common-law relationships when dealing with issues such as pensions and death benefits. Previously, living common law was a disadvantage because not all such relationships were recognized for these purposes. Now they are. For example, you will have the same tax advantages and disadvantages if married or common law. However, there still is some question as to whether a same-sex relationship (unmarried) has the same benefits.
In estate situations, the law has also evolved. Formerly, if a person died without a will, the common-law spouse might not get anything. Years ago there were cases where a couple would be separated for decades but not divorced, and the common-law relationship had lasted for years. Under former laws, the wife would inherit but the common-law companion would not. This has been changed and common-law spouses are no longer left out in the cold.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
