The Saskatchewan Advocate
Common Law Spouses and
Cohabitation Contracts
Sherry L. Fitzsimmons • McDougall Gauley • Saskatoon, SK
Since the introduction of The Family Property Act, there will be a host of individuals subject to the 50/50 division property regime after living together as common law spouses for a period of two years continuously. Despite assurances from government representatives that there would be a province wide information campaign with respect to the changes to The Family Property Act and the changes flowing from that (including The Wills Act), the public clearly has no idea as to when a relationship will be considered a common law spousal relationship.
Recently, Judge McIntyre in Ruskin v. Dewar (December 4, 2003) gave direction with respect to how to determine when two people commence living together as common law spouses and also with respect to determining the date of the commencement of the spousal relationship for the purposes of 23(1)(c) of The Family Property Act, being the exemption section.
Ruskin v. Dewar does not change the law as it relates to the determination of whether two individuals are cohabiting as spouses. At paragraph 30 of the decision, the Court cited from the Court of Appeal decision of Romanchuk v. Robin (2003), 232 Sask. R. 198 that "the common law factors used to determine whether the parties were in a common law relationship still apply under this new definition" and reviewed those as follows:
[9] The courts have considered a number of factors to determine what constitutes a common law relationship. The most common factors relied on are those enumerated in Molodowich v. Penttinent (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) and Tanouye v. Tanouye (1993), 117 Sask. R. 196 (Q.B.). The factors in Malodowich include:
"[16]…(1) Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?;
(2) Sexual and Personal Behavior: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity? (c) What were their feelings towards each other? (d) Did they communicate on a personal level? (e) Did they eat meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?;
(3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping , (d) Household maintenance, (e) Any other domestic services?
(4) Social (a) Did they participate together or separately in neighborhood and community activities? (b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?
(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children: What was the attitude and conduct of the parties concerning children?"
In Tanouye, the Saskatchewan Court of Queen's Bench summarized the factors to be considered in determining whether there exists a common law relationship at para. 36 as follows:
The authorities seem to indicate that a common law relationship or marriage requires perhaps not all but at least a majority of the following characteristics: economic interdependence including an intention to support; a commitment to the relationship, express or implied, for at least an extended period of time; sharing of a common principal residence; a common desire to make a home together and to share responsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and a sexual relationship. As well, it appears that, superimposed on the relationship, there should be the general recognition of family, friends, and perhaps to some extent the larger community, that the particular man and woman appear as a "couple", i.e., a family unit."
The observations of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124; [2003] S.J. No. 216 at paras. 10 and 11 (Q) (Q.B.), are instructive when the court must determine whether the parties have cohabited as spouses continuously for a period of not less than two years:
Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and propertyÑin others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspect of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very importantÑfor others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their "spouse" by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some "spouses" do everything togetherÑothers do nothing together. Some "spouses" vacation together and some spend their holidays apart. Some "spouses" have childrenÑothers do no. It is this variation in the way human beings structure their relationships that make the determination of when a "spousal relationship" exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of "public" declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to "be together". Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people "ease into" situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do no exist.
In the Province of Saskatchewan, as of July 6, 2001 and the passage of The Miscellaneous Statutes (Domestic Relations) Act and The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001(no. 2), S.S. 2001, c. 51, those spousal relationships outside marriage, be they common-law or same sex, are to be treated the same as "marriages". The legislation provides little guidance on what constitutes cohabiting in a spousal relationship or when such a relationship may be said to start or end. It is left to the courts to examine the facts of each case and make those determinations. In a perfect world the courts would have all the information necessary to make such a determination but this is not a perfect world.
With respect to the factors set out in Molodowich and Tanouye, supra, Madam Justice Ryan-Froslie, ended at para. 14:
These decisions set out factors that may be considered. Those factors are not exhaustive. Other factors come to mind including (1) provisions made in the event of illness or death. For example, were they named as beneficiaries in each others wills, RRSPs or life insurance plans? Were they named as powers of attorney or decision makers in health care directives? Were they named as beneficiaries under pension or health benefit plans? (2) Documents may be available to verify the status of their relationship such as income tax returns and elections under pension and health plans. (3) Did their future plans include each other? For example, were there plans to marry, have children or for a joint retirement? (4) motivation for the relationship i.e. why were the parties together?
Having determined that the parties commenced living together as spouses in June 1992 and ceased to cohabit as such in January, 2000, the Court in Ruskin v. Dewar went on to discuss what is the date of commencement of the spousal relationship for the purposes of s. 23(1)(c) of The Family Property Act. The petitioner argued that the date that the parties commenced living together as spouses should be the date used to determine exemptions pursuant to Section 23(1)(c) of the Act while the respondent argued that no property rights are conferred until the parties have been living together as spouses for two continuous years and as such the later date is the date to be used for the purpose of determining exemptions. The Court found that:
The approach to the interpretation of s. 23 taken by the Attorney General, in fact, reflects the approach taken in D.B. v. J.A.B. Until the parties become "spouses" within the meaning of the Act it is not a "spousal relationship" under the Act. While, as the petitioner would argue, the parties have, by definition, already cohabited as spouses for two years, it does not become a spousal relationship for the purposes of the Act until they have so cohabited for two years. It is at that point that the "spousal relationship" commences for the purposes of the Act.
The interpretation of the Court in Ruskin v. Dewar is consistent with the approach taken by the Court in Bernesky v. Smith [2003] S.J. No. 151. Although the Court was deciding a different issue, that is, whether Section 17(1)(b) of The Wills Act operates retroactively such that a will not in compliance with that section would be revoked. In that case, the
parties resided together as spouses from 1977 to the date of death of the male spouse in 2002. In 1995, the male spouse had made a will, the provisions of which gave the female spouse some of the assets but also gave 50% of the rest and residue to his surviving siblings and his sister-in-law. The issue was whether the will was revoked by Section 17(1)(b) such that the female spouse would receive the entire estate or whether the will was not revoked such that the terms of the will would prevail. The Court found that Section 17(1)(b) does not operate retroactively and reasoned that to find otherwise would revoke every will in existence on November 1, 2001 where the testator had lived in a continuous spousal relationship for two after the will was made. The Court further commented that in order for a will to be revoked as a result of Section 17(1)(b) the two year anniversary of the parties residing together as spouses, the "triggering event", must have occurred after the will was made and after the legislation came into effect on November 1, 2001.
In summary, the decision in Ruskin v. Dewar is a little different than what seemed to be the prevailing view of the Court, at least informally at the pre-trial conference stage, prior to the passage of The Miscellaneous Statutes (Domestic Relations) Act and The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (no. 2). Often at pre-trials there was some direction given by the Court that if the couple had lived together prior to the marriage (regardless of the length of time) the date to be used for determining when property rights begin to accrue and the date for exemption purposes should be the date the parties started to reside together, rather than using the common law trust and quantum meruit principles for the common law portion of the relationship and the date of marriage for the property division principles set out in The Matrimonial Property Act.
