Canada: Dangerous case study in the perils of same-sex marriage

[Dinner]

Is Ben still in Texas illegally?

Make America better: Deport Ben.

[MrFun]

Common law marriages don't occur without consent by both parties to be married, idiot.

That's too complex for BK to grasp.

[Ben Kenobi]

Common law marriages don't occur without consent by both parties to be married, idiot.

ORLY?

It sure can happen if you live with someone long enough. That's why it's called common law, the law recognises it.

[Flubber]

Common law marriages don't occur without consent by both parties to be married, idiot.

Actually the better way to put it is that common law marriage generally is a bit of a misleading label. In Canada there is no point in time or date or event when you are suddenly married in the eyes of the law. It NEVER happens so divorce is NEVER required unless you actually and INTENTIONALLY get married.

Instead what happens is that there are a variety of provincial statutes which can confer rights and obligations on people in certain situations. Consent is not required for many of these rights and obligations to arise. The leading case in Canada involved a farmer who lived with a woman for over 20 years and when they split up tried to deny her any property division since he owned the farm and they weren't married. He would say he never consented to being found similar to married but the court found that fundamentally unfair (she had worked on the farm all those years as if it were hers as well ) and found that notwithstanding his legal title, they would deem that he was holding a portion of the ownership in trust for her and that her share would be determined based on equitable principles.

IN cohabitation situations, in most Canadian jurisdictions, I believe you never ever get to the 50/50 assumption of the matrimonial home but instead the court tries to determine what is fair in the circumstances. So having someone move in, stay a year and then be able to claim half your house is NOT the norm. Sucn a person may be entitled to nothing (if you had always handled your affairs as if she had no interest in the house or more than half (if she funded a renovation that more than doubled the value). THe idea is equity.


I just wish people would stop acting as if common law equals a legal marriage. IN canada it is NOT THE SAME

[giblets]

Okay. In the 11 U.S. states that have it, there has to be mutual consent.
http://en.wikipedia.org/wiki/Common-...n-law_marriage
I'm surprised if Canada doesn't require consent, but apparently Flubber says it's not a real marriage.

[Ben Kenobi]

That's why I'm waiting for a case with a gay man do that to a straight man. Will be interesting.

[giblets]

According to Flubber it's not a real marriage, so who cares?

[Ben Kenobi]

Uh, division of property. Hello? Court treats it just like a real marriage.

[Flubber]

If you dont believe me - THis is from a pamplet put out my Newfoundland continuing legal education. The rules in other provinces will differ slightly

COMMON LAW RELATIONSHIPS
Two people are considered to be in a common law relationship when they live together in a conjugal (married-like) relationship without having been legally married.
Common law couples have certain rights and obligations which result from the relationship. Often these rights are not as well defined as those which flow from marriage. For example, a common law spouse is not necessarily entitled to half ownership of the home when a relationship breaks down.
In most cases, these sections should be read in addition to the corresponding provisions dealing with married couples. Our intent in this section is to highlight some of the differences for common law spouses.

Naming A Child
Children of a common law relationship can be given either their mother’s or father’s last name. If the father is not named on the birth certificate, his permission is needed to be able to use the name. An application to change a child’s name can be made through Vital Statistics (contact information at the back of this booklet).

Co-Habitation Agreements
A co-habitation agreement is a contract entered into by both people in a common law relationship, which determines their rights and obligations during cohabitation, or on ceasing to cohabit or on death. It must be signed and witnessed. It may state, for example, that the shared home will be divided equally upon the ending of the relationship. In addition to addressing financial issues, it can also include some provisions concerning the education and moral training of any children of the relationship. However, you can not include terms which decide custody and access to the children.
If a common law couple marries after signing a co-habitation agreement, the agreement will become a marriage contract unless the agreement is cancelled in writing.

Division of Property
The division of property after the separation of a common law couple is different from that of a legally married couple. The Family Law Act which essentially divides the marital assets equally between two married spouses does not apply to a common law relationship. This Act can be accessed via the House of Assembly page on the Government of Newfoundland and Labrador website (http://www.hoa.gov.nl.ca/hoa/).
For example, if a couple is married, the matrimonial home, no matter whose name it is in, is presumed to be owned equally by both spouses. The same does not apply for a common law couple [unless they have chosen to enter into an agreement which says otherwise].
When a common law relationship breaks down, each partner is presumed to own only those things that he or she purchased or that are registered in his/her name. This can mean that one partner might leave the relationship with nothing. For example, if the house is registered in the name of only one spouse then that person is presumed to own the house. In cases such as this, disputes over property division often end up in Court. A Court may order that property be divided if it is shown that one person contributed financially to it, or contributed in a way that allowed the other person to accumulate property. An example of this might be if one partner stayed at home to raise the children, allowing the other partner to work. The longer the relationship has been going on, the greater the chances are that the court will consider dividing the assets. To support a claim for division of property in a common law relationship, you should keep a record of who purchased which pieces of property and who contributed work and effort to the purchase and upkeep of property.

In the Event of Death
If one partner dies without leaving a will, his or her assets will not automatically pass to the other partner. This is so even the case if the couple have been living together at the time of death. If there is no will, the deceased person’s estate will be distributed according to the Intestate Succession Act. This Act can be accessed via the House of Assembly page on the Government of Newfoundland and Labrador website (http://www.hoa.gov.nl.ca/hoa/).
In order to ensure that a common law partner inherits all or a portion of the deceased partner’s estate, it should be stated in a will.

Spousal Support
Requests for spousal support are sometimes made following the breakdown of common law relationships. Parties are sometimes able to come to mutually satisfactory agreements with the assistance of lawyers and/or mediators.
In cases where an agreement cannot be reached, an application for spousal support can be made to Court. There are time limits for filing an application for spousal support. There are factors which determine whether someone is qualified to make such an application. It is strongly suggested that a person speak with a family law lawyer if he/she is considering filing such an application. There are many considerations for a judge when deciding whether or not to grant spousal support.
Spousal support is taxable and unless it has been given voluntarily without a court order or a written agreement, then it must be declared as income by the person receiving it.

Child Support
All parents are required to support their children, regardless of the parents’ marital status. Child Support Guidelines are used to determine the amount of child support to be paid. They are referred to as “guidelines”, however they are law and judges have little discretion to deviate from them.
A common law spouse who is not the biological parent of a child might still be required to pay child support if the court finds that he or she “stood in place of the parent” or acted as a parent to the child.

Child Custody
Common law spouses who are the biological parents of a child normally have equal rights to custody, unless a court order or an agreement between the parents says otherwise. If a couple cannot agree upon custody and access arrangements, a Family Justice Services’ mediator may be able to assist parents reach an agreement. If the parents can’t reach a mutually satisfactory agreement, then the matter will undoubtedly be decided by a judge. When deciding the issue of custody and access, the best interests of the child are the primary concern of the Court.
30

[Flubber]

Uh, division of property. Hello? Court treats it just like a real marriage.

Ben -- NO they don't-- read up if you want to talk about this. There can be a property division but the mechanisms and assumptions are different than for folks that are legally married

[Flubber]

Not just me saying it (NOte this article predates the gay marriage rules changing)

What constitutes a "Common-Law" Marriage?
We generally use the term "common-law marriage" to describe the voluntary union of a man and woman in a lasting relationship resembling marriage. The parties may indeed behave as if married, refer to each other as if married, and be recognized or assumed to be married in their community. In fact they are not married -- no matter how long they have lived together, no matter how many children they have.

They may have specific rights as conferred by statutes. For instance, they may treat each other as dependants for tax purposes, and take the same deductions as if they were married. They have mutual obligations to their children, with all rights of custody and access, as if married. They receive Child Tax Benefits. They can insure each other's life and qualify for pension benefits.

In Ontario, they have a mutual support obligation at law because of the Family Law Act. This arises because the Act states: "Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so," and defines "spouse" to include either of a man and woman not being married to each other who have cohabited:

a) continuously for a period of not less than three years; or
b) in a relationship of some permanence,if they are the natural or adoptive parents of a child.

Almost exactly the same words are used in the Ontario Succession Law Reform Act to permit an unmarried dependent "spouse" to claim against an estate. One remarkable case dealt with the effect of an incomplete sex change. The parties, both born female, had in the course of their lives married and had children. After that, they formed a relationship together that endured for twenty years. One of them, taking the male role, had extensive psychotherapy, hormonal injections, a double mastectomy and a panhysterectomy but no genital surgery. He (she) had changed the gender designation on his (her) birth certificate. They separated, and the male partner claimed support from the female. The Court held that they were not a man and woman who had cohabited, since the sex change was incomplete, and reversible if hormone injections were stopped. The mastectomy and hysterectomy were inconclusive, since many women have this surgery without any question of their gender. The result might well have been different if there had been genital surgery.

Property rights
Parties who live together as if married have no property rights under the Family Law Act, so that there's no statutory entitlement to sharing of assets if they separate. Parties who live together may have property rights against each other based on the same legal principles that govern property rights between any unrelated people. This law is founded on the idea of compensating a person for the contribution he or she makes to the property of another, by imposition of a constructive or implied trust from the recipient in favour of the contributor.

The Supreme Court of Canada considered the case of a couple who lived together unmarried for about twenty years, during which they worked together to build a successful and prosperous beekeeping business, registered in the name of the man. The Court found that the woman's contribution in equal work and effort gave rise to a constructive trust in her favour for one-half of the property and business assets. There have been many other cases in which a share of property or some money award has been given to a party in a "common-law" union.

Cohabitation agreements
Parties who live together can create their own support obligations and property rights by making a "cohabitation agreement." The Family Law Act specifically permits this, in the following words:

"A man and a woman who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit, or on death, including:

a) ownership in or division of property
b) support obligations
c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children
d) any other matter in settlement of their affairs."

To be valid, a cohabitation agreement must be in writing, signed by the parties, and witnessed. If the parties to a cohabitation agreement subsequently marry, in the absence of specific words to the contrary, their agreement becomes a marriage contract.

This article has been edited and excerpted with permission from the seventh edition of Canadian Family Law (Stoddart Publishing, $15.95) by Malcolm Kronby, LL.B., Q.C. This book is invaluable for anyone who needs to understand the current laws regarding marriage, separation, divorce, child custody, support, property rights, and much, much more. Malcolm Kronby is a respected Toronto lawyer with Epstein Cole, and an instructor in family law at Osgoode Hall.

[Ben Kenobi]

Ben -- NO they don't-- read up if you want to talk about this.

I did. Ontario says that they are a spouse, just as if they were otherwise married. Gives them rights and responsibilities.

[Flubber]

I did. Ontario says that they are a spouse, just as if they were otherwise married. Gives them rights and responsibilities.

Doesn't get them under the Divorce Act and nothing Ontario legislature does ever could

[Flubber]

I did. Ontario says that they are a spouse, just as if they were otherwise married. Gives them rights and responsibilities.

Ben read more-- THis is from a pamplet put out by the attorney general for Ontario

Living together
If you live with someone without being married, people say you are in a common law relationship or are cohabiting.
Property
Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Usually, furniture, household belongings and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship.

The cite is here http://www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf

[Ben Kenobi]

Doesn't get them under the Divorce Act and nothing Ontario legislature does ever could

Doesn't matter how they have the same rights and obligations, only matters that they do.

Flubber that's like quarrelling with the inch. The cite recognizes that the spouse has an obligation for support. A couch is what? A couple grand? Support is much more.