Does the difference matter?

When Kristin Howell and Greg Moss completed the birth registration form for their newborn son a few weeks ago and submitted it to Nova Scotia’s vital statistics department, they thought that job was done.

But, because Kristin and Greg aren’t married, what should be a simple bureaucratic procedure has become complicated. In Nova Scotia, when the parents of a new baby are not married, they must also complete a parent declaration in front of a Justice of the Peace, a notary or other such official; just what sleep-deprived and otherwise fully occupied new parents have the time to do.

As Kristin said:

“I feel like it’s 1962 instead of 2019. I think it sends the message that it’s shameful to be unmarried and that I’m not to be trusted to state who the father is on my child’s birth record.”

Antiquated distinctions

While Nova Scotia’s approach is not mirrored in every other province and territory, outdated distinctions between people who are married and people who live together without the official blessing of government or religion remain in place.

With respect to most family law issues – custody and access, child and spousal support – married and common-law partnerships are usually treated the same.

However, this is not the case everywhere in Canada in terms of how property (homes, cottages, pensions, debts, etc.) is divided at the end of a relationship.

For married people, the federal Divorce Act as well as relevant provincial/territorial legislation, requires that property acquired during the marriage be shared equally between the two spouses when they end their relationship. Marriage, the law says, is a partnership to which both people contribute, even if differently, and that is to be reflected in an equal sharing of property.

We have Irene Murdoch to thank for this. She was a “farm wife” in Alberta and, when she and her husband separated in the early 1970s, she sought a 50/50 share of the value of the farm. She fought her case to the Supreme Court of Canada which, in a 4 -1 decision, found that her labour on the farm was “not beyond that expected of a farm wife.” As a result, because her name was not on the deed and she did not make the mortgage payments, she did not get a share of the farm’s value.

In the years following this decision, both federal and provincial/territorial governments rewrote family laws to ensure that married spouses would share equally in the value of their property when they separated, but they did not address common-law relationships.

Tie the knot or you may lose out

People in common-law relationships must turn to provincial/territorial legislation if they cannot agree on how to divide up their property when they split up. There is an array of approaches across the country. Here are just a few examples:

In British Columbia and Saskatchewan, common-law relationships at least two years long are treated the same as married relationships for the purpose of property division. In Manitoba, common-law couples who have been together for at least three years or who have registered their relationship have the same property rights as married people.

In Ontario and Quebec, there is no statutory requirement that property be shared equally between two people who have been in a common-law relationship.

Catching up with the times

New legislation comes into effect in Alberta as of January 2020 that evens out the differences between people in intimate relationships who marry and those who don’t, while also extending rights and responsibilities to adults in other kinds of committed relationships.

The Matrimonial Property Act will become the Family Property Act and will set out the terms for dividing property for people who are in “adult interdependent relationships.” This includes:

  • Married spouses, including any time they lived together in a relationship of interdependence before they got married
  • Two people in a marriage-like relationship
  • Two people in a non-romantic relationship
  • Two family members who have entered into an adult interdependent partner agreement

Beginning in January 2020, people in any of these kinds of relationships will have the same rights and responsibilities with respect to family property as married people have had; that is, property will be shared equally between them if the relationship comes to an end.

Making our own rules

This move by Alberta is long overdue and worthy of applause. The distinctions that have existed between different kinds of committed, intentional and dependent adult to adult relationships do not reflect how many people in Canada choose to live. (Fifteen percent of adult Canadians live in a common-law relationship, a number that has been steadily growing over the past several decades.)

Vulnerable people – women whose partners are abusive, for example – find themselves in precarious positions at all stages of the relationship, but especially when it ends, when laws don’t address the realities of how people live.

Those of us in common-law relationships in parts of the country where the legal distinction between married and common-law relationships continues and those anywhere in the country who are married but want to set their own rules need to remember that we can, in fact, do just that.

A cohabitation agreement allows two people who live together without being married to set out some of the terms of their relationship, including what is to happen if they break up. While a cohab cannot speak to child-related matters, it can commit the people to sharing their property equally (or in any other configuration) if their relationship ends, even when the law does not require such an approach.

A marriage contract provides the same kind of opportunity to people who are marrying. For instance, the spouses can agree that they do not want to share their property equally, even though the law says they have this right.

The two people can do the same at the end of the relationship by writing a separation agreement. However, there are few breakups where both people have mutually positive feelings, so it is much better to set out the terms of disengagement when it is a far-off hypothetical and the people are fond of one another. Not surprisingly, it is difficult to convince people at this happy point in their relationship that they should plan for the worst.

But, if we want to shape and control our relationships and their possible demise, rather than leaving it to the whim of governments, this is exactly what we must do.

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