As many of you know, there is an ever-increasing tendency for individuals to co-habit as partners or common law spouses without entering into a marriage. Such arrangements may be opposite or same sex relationships. Some of the relationships are short term and/or may not be regarded as common law relationships. Partners and spouses who are unmarried and live together are now commonly referred to as “partners”.
What many do not know is that, on death, the rights of the surviving partner are not the same as the rights of a surviving married spouse.
Under the Family Law Act (the “FLA”), the surviving married spouse must elect to take under the Will of his or her deceased spouse or to receive his or her entitlement under the FLA. Under the FLA a spouse is entitled to an equalization of net family properties. If the net family property of the deceased married spouse is greater than the net family property of his or her surviving spouse, the surviving spouse under the election can be entitled to one-half the difference between them.
Unmarried partners do not have the right of election under the FLA. The implication is that if a partner has not provided for his or her surviving partner either by Will or by some other means, the surviving partner may experience some financial difficulties or results that were unanticipated. Recourse would be limited to the rights under the Succession Law Reform Act (the “SLRA”). Under the SLRA, the survivor would have to prove that he or she is a “dependent”. Moreover, you may ultimately need the determination of a court as to how much money you would be entitled to as a dependent under the SLRA. There may be other common law remedies, but proving these may also require judicial proceedings.
Regardless of the recourse that partners may have outside of the FLA, partners should take measures to protect their respective interests. One protective measure is to have a cohabitation agreement drafted to protect the interests and expectations of each of the partners. It may be that the partners do not wish to be called upon to financially support the other. Conversely, it may be that there is some expectation of the provision of financial support. There may also be matters concerning ownership or entitlement to property that need to be clarified in writing.
Of course, you’re wondering what is the point of entering into a cohabitation agreement when you hear people saying that it may not be worth the paper it is written on. In fact, you may have found that lawyers were unprepared to give any opinions as to the enforceability of cohabitation agreements given how aggressive some judges were in setting them aside.
Good news comes in the recent Supreme Court of Canada decision of Miglin. In that case, the message appears to be that decisions made by people in setting out their domestic agreements should, by and large, be respected. In the negotiation and preparation of domestic agreements, it remains important to ensure that independent legal representation is obtained to protect against any provision of the agreement being set aside.
Estate planning should not be limited to married partners. Given the non-existence of the right to make an election under the FLA, and the lack of certainty as to entitlement under other areas of the law, it is prudent to seek proper professional advice to determine what is recommended in circumstances of cohabitation between non-married partners.
