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What is a spouse in family law?

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Definition of a “Spouse” in Family Property, Support Payments, and Wills/Estates

Many people think they will qualify as a spouse since they are living or cohabitating with their partner. Yet, the definition of a “spouse” will vary according to its context. Traditionally, to be a spouse, you would partake in a religious or secular marriage ceremony and be bound together as husband and wife. In modern-day, the idea of a “spouse” has evolved substantially from a “husband” or a “wife” to include a wide array of relationships. The legal definition of “spouse” has broadened to include persons in traditional marriages and partners in “marriage-like relationships.” Marriage-like relationships can be defined as common-law relationships, civil unions, cohabitation, same-sex relationships, and more.

In Canada, divorce is governed solely by the federal government. However, each province has its own law to govern the specific dealings of the relationship such as property division. The federal government and provincial government mutually govern child support and spousal support.

In respect to family property in Ontario, the Family Law Act, R.S.O 1990, c. F3 (“FLA”) has differing obligations for married versus unmarried spouses. The Ontario Family Law Act contains two definitions of “spouse”, divided into sections of married spouses and unmarried spouses. Under section 1(1), the (“FLA”) of Ontario defines a “spouse” as a person who is married or entered into a marriage and will therefore be entitled to an equalization of net family property under Part I of the Act. The definition of unmarried spouses is found in section 29 of the Ontario (“FLA”), which will only apply to support obligations. The (“FLA”) of Ontario does not give automatic property rights to unmarried spouses without a shared title of the property. Accordingly, spouses in “marriage-like” relationships in Ontario will not regularly be given rights to an equalization of net family property.

Additionally, in Ontario, to determine the assets of a deceased person without a will or with a will that does not adequately deal with all the assets, the Succession Law Reform Act, R.S.O. 1990, c. (“SLRA”) sets out provisions and a framework to distribute the estate. The (“SLRA”) not only recognizes married persons as “spouses, but” it also broadens the framework in Section 57 of Part V defining a “spouse”; it includes “two persons who are not married to each other and have cohabited for a period of not less than three years.” Although the (“SLRA”) provision expands the class of people who can qualify as a spouse, they would not be entitled to spousal support claims as a dependant unless they have cohabited for three years. Consequently, the provisions in (“SLRA”) and the (“FLA”) demonstrate how the definition of a “spouse” is crucial in proceedings such as estate litigation and family property.

Ontario legislation can be contrasted with other provinces such as British Columbia (B.C.); The Family Law Act SBC 2011, c 25. declares a spouse as “A person who is married, or a person living with another person in a marriage-like relationship continuously for the last 2 years or has a baby with that person. A spouse includes a former spouse.” B.C. courts will often use the adaptable methodology in family property cases to define “spouse” in marriage-like relationships. The courts aim to honor modern legislation and the evolved concept of a “spouse.” In Weber v Leclerc 2015 BCCA, 492, the court held that partners who separated their finances and intended to stay unmarried but lived with their children were in a marriage-like relationship and thus, fulfilled the definition for “spouse.”

Depending on where you reside, the definition of “spouse” varies between provinces and their laws. Commonly, in Canada, court proceedings and litigation surrounding family property and support payments frequently arise in situations when it is indistinguishable whether persons in a “marriage-like relationship” have ended their relationship. The leading case Molodowich v Penttinen, 1980 CanLII 1573 (ONSC) (“Molodowich”) sheds light on the issue of whether a relationship is adequately marriage-like to qualify the participants as “spouses.” The Molodowhich case considers factors such as sexual and personal behavior, shelter/cohabitation, services, social life, societal expectations, economic support, and children. However, the Molodowhich factors are applied on a case-by-case basis where a marriage-like relationship is concerned. In applying Molodowhich to recent cases, the general trend in Canadian jurisprudence has been flexible, but also an important variational approach in determining the qualifications of a spouse.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. For legal advice, please reach out to the experienced Lawyers at Nussbaum Law.

Did You Know

Most abusers’ behaviour stems from feelings of privilege and entitlement and learned attitudes.

These can be extremely challenging to change. They must be deeply committed to making lasting changes to their behaviour. 

Published On:October 7, 2021